Am I overlooking anything in WA community property rules that would warrant a prenup?

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  • #96971 Reply

      Prenup question after having spent a while reading previous threads.

      Washington state. Fiancé and I are getting married next year. Mid 30s, first marriage for us both, been together 10 years, living together 7 years, no debt, no real estate. Extremely open about finances including managing/budgeting all of our accounts together in Mint/Monarch for several years and tracking collective net worth for the same time period.

      Neither of us are opposed to a prenup but given that Washington state is a community property state, I’m not seeing what we would gain from one? We are both aligned that whatever we individually bring into the marriage (me: 401k, Roth IRA, brokerage, HYSA; her: Roth IRA, HYSA) would remain individually ours in the event of divorce. Any anything acquired post-marriage (including contributions to the aforementioned accounts) would be split 50/50. My research says this is the default in a community property state like WA. 

      Am I overlooking anything or misunderstanding community property rules that would warrant a prenup given our alignment above?


      #96972 Reply

        Getting a prenup and consulting with a lawyer will help you document exactly what will happen vs assuming that what you thought should happen will in fact be what happens.

        I’m definitely not a lawyer, but I do believe your understanding of what would happen by default is flawed. If you use martial assets (eg paycheck contributions) to add to an account (eg an employer 401k or an IRA) that makes the account commingled.

        It is my understanding that in most states by default a commingled account becomes entirely community property and thus “what you brought in stays yours” is thrown out the window and the entire balance becomes split 50/50. For IRAs, there’s an easy workaround, create a new account and never add marital property to the personal IRAs. New contributions go into the new account.

        This is next to impossible to do with 401ks though, so if you want your pre-marriage 401k balance to remain yours (and if you ever want to add money to the plan), it pretty much needs a legal document (eg a prenup) to define the rules by which this happens.

        #96973 Reply

          IMHO there is never not a good idea to get one. That that agreement and put it in a contract

          #96974 Reply

            A prenup agreement is one where you and your fiancé dictate how you’d like the division of assets to take place after a divorce, not how the default law in your state necessarily mandates. Make no assumptions.

            #96975 Reply

              As someone who recently went through a divorce in WA, I’d say that if you got divorced today it would probably go mostly as you expect. All of the standard paperwork our attorneys had us work through asked us about account values prior to marriage. That was easy for us because we married young and had no premarital assets, so we didn’t get into the intricacies.

              Bear in mind, though, that a divorce might be a few decades in the future and laws may change. A prenup can also address how you handle division of assets and support payments in the case that one spouse becomes disabled or makes significant career sacrifices for the benefit of the family. These are situations that state laws often don’t cover well and it’s good to decide how you’d want to handle it now while you’re in the mindset of taking care of each other.

              #96976 Reply

                For sure see an attorney and confirm that what you think/want to happen is what will happen. Dividing your assets sounds like it will be fairly easy, but what about if you have children? Child support? Alimony? Do things change if one of you stops working outside the home for an extended period of time?

                As someone else mentioned, are your premarital assets structured in such a way that they won’t be commingled after you marry?

                Very small investment with an attorney will likely pay huge dividends in clarity and understanding for both partners.

                #96977 Reply

                  What happens if at some point in the future you move outside of WA? Depending on the state, that could change things significantly in the event of divorce.

                  #96978 Reply

                    WA sounds similar to MN. I consulted with a lawyer. We’re basically in the same position as you.

                    She recommended writing a detailed, NOTARIZED list of all individual assets (my asset list, my fiancé’s asset list) and what were “bringing” into the marriage. If we do get divorced, we plan to utilize the notarized list to say what we brought into the marriage, were individually taking out of the marriage.

                    We do not plan to commingle any of our bank accounts/finances aside from purchasing a house together. That would be the only financial and or physical asset with both our names.

                    I asked about future children, if I were to be a SAHM, spousal support etc. and non of it applied to our situation. We also don’t have trusts or large inheritances or children or to be honest, very many assets in general. One tiny house + a few cars/toys.

                    Consulting with a lawyer is the best way to get clarification because each state is so different on how they handle divorces.

                    #96979 Reply

                      What if you were to move to a noncommunity property state and then your partner is unwilling to sign a prenup. Then you are big-time screwed.

                      #96980 Reply

                        Get a family lawyer each and get a prenup. I was glad I had one at the end. Never thought the man I married would end up calling me vindictive. Would 100% do it again. Protect yourself in the case it ever happens. Kinda like a fire extinguisher, you don’t want a fire to happen, but if it does, you’re prepared.

                        Also, have one because you do love your partner and want to protect them too.

                        #96981 Reply

                          A prenup overrides community property laws.

                          A prenup can regulate all aspects of how separate and community property assets and liabilities are treated. In the case of a financially independent couple with their own resources, a prenup can provide that all income, assets and debts acquired or incurred remain separate property.

                          In addition to the prenup, there needs to be an understanding of how all costs will be split, too. If one earns $100k and the other earns $200k, does one pay 2/3rds of all household costs? And if you buy a home, and one pays 2/3rds of the mortgage, do they get 2/3rds of the home in the divorce? All this needs to be captured in a legal document. And if one person can only afford to contribute $5k/yr to their 401k while the other maxes theirs out every year, is this fair?

                          In my marriage, we put 100% of all monies in one acct and pulled 100% of all expenses (home, groceries, jewelry, hair dos, cars, etc.). There were no separate accts except our retirement accts.

                          And when my wife became a stay at home mom for our two kids, I continued maxing out her IRA every single year while she had no income. It has worked out amazingly well. It was tough in the early days when we really had to count our pennies and going to McDonalds but it is easy now and part of the success was our total open sharing of accts and money.

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