LGBTQ couples have the same right to marry and divorce as heterosexual couples, meaning that LGBTQ prenuptial agreements work the same way they would for couples in heterosexual relationships. A prenuptial agreement is a contractual agreement made before marriage (if the agreement is made after marriage it is known as a postnuptial agreement) that allows a couple to make decisions about marital assets, property, and debts.
In your prenuptial agreement, you can decide which assets in your marriage will be shared and separate, provide instructions for how debts brought into the marriage will be handled, and provide instructions for how debts acquired during the marriage will be managed. A prenuptial agreement can also help you address estate planning matters, though additional estate planning instruments may sometimes be required.
Without a prenuptial agreement, Washington marriage laws and community property laws regarding marital assets, debts, and separate property will apply to your marriage. If you think these laws are fair and appropriate for your situation—wonderful! Yet, Washington’s marriage and community property laws are hardly one-size-fits all. If you own a business, if one partner brings significant debt or wealth to the marriage, or if you and your partner were together before marriage equality laws were passed, you might want to consider whether a prenuptial agreement is right for you.
Here’s a very general sketch of how marital property laws work in Washington state.
- Property or assets owned by a spouse before marriage, or property or assets inherited by a spouse after marriage would be considered separate property under RCW 26.16.010.
- Any property acquired after marriage (or after the registration of a domestic partnership) would be considered community property and therefore considered shared property (except for inherited property) under RCW 26.16.030.
- Real estate purchased after marriage is considered community property.
It’s important to note that this is only a general outline of how marital property laws work. Separate assets can end up becoming community property assets if they are comingled during the marriage, and other issues can arise when an individual owns a business, or when a couple owns and operates a business together.
LGBTQ couples sometimes find themselves facing unique circumstances that can be addressed through a prenuptial agreement. For example, some LGBTQ couples were in committed relationships long before same-sex marriage was legalized by the state of Washington and long before the Supreme Court recognized same sex marriage nationally through Obergefell v. Hodges.
Depending on where you live, existing community property laws may not recognize shared debts or shared property if you purchased the property or took out the debt before you formally got married. Because of these issues, some LGBTQ couples have chosen to write postnuptial agreements to make sure that property and debts they acquired together during the period where they lived together in a committed relationship (but could not get married) are treated in the same way they would have been treated had the couple been married.
This is just one example of the unique concerns that a prenuptial agreement or postnuptial agreement can help LGBTQ couples address. In this article, we’ll explore the following topics in depth:
Premarital Property and Debts
Same sex marriage was first legally recognized in Washington state in 2012 (though same-sex couples could legally register their domestic partnerships starting in 2007), and it has only been since 2015 that same sex marriage has been legally recognized on a national level after the Obergefell v. Hodges Supreme Court ruling.
Before these laws were passed, same-sex couples often had to navigate a patchwork system of national laws where some states granted them full legal rights, some states granted them partial legal rights (through domestic partnership laws), and some states granted no legal rights at all. Prior to marriage equality, a same-sex couple could theoretically get married in one state, move to a state where same-sex marriage wasn’t recognized, and find that they couldn’t file for divorce.
Washington’s own history of failing to recognize same-sex marriages and its slow move towards granting same-sex couples full civil rights can help us gain some insight into the challenges that same-sex couples have (and still face), and why some couples might want a postnuptial agreement to ensure that the law would recognize the true length of their relationship.
In 2007, Washington state began granting domestic partnerships to same sex couples. Yet, Washington’s domestic partnership laws still resulted in same-sex couples being denied many rights afforded to heterosexual couples through marriage.
In 2008, Washington’s domestic partnership laws were expanded to include 170 additional rights and responsibilities provided under marriage, and in 2009, an “everything but marriage” bill was signed into law, which extended all state-benefits granted to married couples to same-sex couples. This expansion allowed same-sex couples the right to be able to use sick leave to care for their spouse and it granted same-sex couples the right to collect unemployment, disability benefits, workers’ compensation benefits, and other insurance rights typically granted to married couples.
In 2014, all state-registered same-sex domestic partnerships were converted to marriages (as long as both partners were under age 62). When this conversion occurred, the marriage date for these couples became the date they entered a domestic partnership.
What does this all mean for same-sex couples in Washington? Same-sex couples who were living together in a committed relationship before 2007 might not have the same community property rights as heterosexual couples who were married before 2007. Unless you and your partner took specific steps to ensure that the assets were shared, any property, real estate, or money acquired before Washington permitted domestic partnerships would be considered separate property under the law.
This can have real implications. For example, under Washington’s marriage laws, even if only one person’s name is listed on a real estate deed purchased after a couple is married, in many cases, both parties would typically have community rights to the real estate. Yet, for a same-sex couple living together in a committed relationship before 2007, the same rights may not apply. The couple would have had to take specific steps to protect the property as shared property (like including both partner’s name on the title).
Or, think of another situation, where one partner purchased a home prior to a marriage (with a mortgage), and after marriage, both partners’ incomes helped pay for a remodel. Under Washington’s marriage laws, the married partner would have a stronger claim to a portion of the property’s value as their own (even if the property was purchased prior to the marriage) because community assets helped pay the remodel costs.
For a same-sex couple in a similar situation who got together before 2007, the situation is different. Again, unless the couple took very clear steps, like putting both parties’ names on the deed to the property, then shared money being used to pay for a remodel could possibly be seen as a gift to the partner who owned the property before the marriage was legalized or formalized. This is a situation where a couple’s same-sex class could result in long-term financial ramifications for both parties.
These issues can also apply to debts. Debts acquired during a marriage would typically be seen as shared liabilities. After all, when one partner charges their credit card, anything purchased with the credit card would be considered marital property. But for a same-sex couple together before 2007, debts would be considered separate. This can be problematic especially if one partner took out debts in his or her name to the benefit of both parties.
If you and your partner were together before 2007 and would have otherwise gotten married if you had been permitted to do so, a postnuptial agreement could help you and your partner take steps to ensure that property acquired before you were able to be married is clearly designated as shared property, and to ensure that both parties have a shared understanding about their shared debts and assets.
To further complicate matters, if you and your partner lived in a state where same-sex marriage wasn’t legally recognized until 2015, you may have a shorter period where assets and debts would be counted as community property.
A prenuptial agreement lawyer in Washington at Truce Law can review your unique situation, discuss your intentions, and help you create a postnuptial agreement that reflects the truth of your relationship.
Estate Planning
While prenuptial agreements cannot include provisions for child support or child custody, prenuptial agreements can be an important place for same-sex couples to discuss estate planning to support their children, including children from a prior marriage. If you plan to adopt children, have adopted children, or have children from a previous marriage, Washington’s intestate laws can impact your children and your spouse’s inheritance. For example, absent a will, your estate would be divided 50% to your spouse, and then the remaining 50% would be distributed to your children. If you want a different arrangement, you’ll need to do some estate planning.
If you were in a prior same-sex marriage or relationship and adopted children and are now getting remarried or married for the first time, your situation could be even more complicated, especially if only one person from your prior marriage is listed on the adoption paperwork, or if only one parent was recognized by the state when the child was born. It was only in 2017 that the Supreme Court removed all bans on same-sex adoption. While individual adoption agencies can still deny adoptions to same-sex couples, same-sex couples now have ways to adopt in all 50 states.
You’ll want to speak to an estate planning lawyer or prenuptial agreement lawyer to review the situation, help you understand your rights and the adopted child’s rights, and help you take steps to ensure that your estate is distributed according to your wishes.
LGBTQ couples might also need to consider issues that can arise regarding retirement benefits, and retired military benefits. Retirement benefits can often be considered a marital asset, with the length of a marriage playing a role in how much money a partner might be entitled to receive if the couple gets divorced. This makes sense because the length of time that both parties could be seen as contributing to the retirement fund with community money would depend on the length of the marriage. A person who has been married longer would have the right to claim more of their partner’s retirement pay than a person who has been married for a shorter period.
Yet, issues can arise for LGBTQ couples whose marriages would have only been considered legitimate in Washington from 2007 (and for couples living outside of Washington, this date could be as late as 2015). If you and your former partner were living together before your marriage was formally recognized, you may be able to include provisions in your prenuptial or postnuptial agreement that can clarify the exact date you want to consider your retirement account a shared asset.
Gray LGBTQ Marriages
LGBTQ couples who weren’t permitted to marry when they were younger might also choose to get married later in life, but this can create unique challenges when it comes to planning for retirement, for estate planning, and when it comes to blending your financial lives. Couples who don’t take the time to consider the implications marriage might have for their assets, retirement, or estate, might find themselves surprised when Washington marital property laws or intestate inheritance laws fail to reflect their wishes.
Truce Law is a collaborative family law firm that can help you and your future spouse write a prenuptial agreement that takes these unique considerations into account. Our team includes estate planning lawyers who can help you navigate some of the unique challenges that can arise when LGBTQ couples get married older.
Because we are a collaborative law firm, we help couples going through divorce navigate and negotiate their divorce settlements peacefully, and we see the issues that can lead to family conflict. We are here to help you address these issues before you get married. A prenuptial agreement is a document that allows you and your partner to anticipate issues before they arise. The process of writing a prenuptial agreement can raise some sensitive issues involving money management, end-of-life planning, estate planning, and more. Having collaborative lawyers able to help you navigate these difficult topics, can help you and your partner craft a prenuptial agreement that works for you.
Pet Custody
Even if you don’t have children, you might have fur babies. When it comes to divorce, pet custody is a unique issue because under Washington law, pets are considered property. This means that if you and your partner acquired a pet after you got married, the pet would be considered community property, and thus owned by both of you. And if you weren’t married, the person who made the purchase or adoption would be the pet’s legal owner, unless both of you filled out the paperwork together. Often it’s not clear who was primarily responsible and that issue will need to be brought to court if an agreement cannot be reached.
If your divorce ends up in court, a judge wouldn’t have the ability to create a shared custody agreement for your pets, because the concept of shared pet custody doesn’t exist under the law. The judge would look at the facts and grant one person ownership over the animal after the divorce.
Fortunately, a prenuptial agreement is a place where you and your partner can decide how you want your pets to be treated should you get divorced. In your prenuptial agreement, you can arrange for shared ownership, and create a shared ownership agreement that works for your situation (that includes visitation and shared healthcare decision-making). You can also write instructions for how you want to handle existing and future pets.
Everything Else
While LGBTQ couples sometimes encounter special situations arising due to a history of discrimination and unequal treatment, for couples whose relationships are more recent, a prenuptial agreement would basically work the same way a prenup would work for a heterosexual couple. In short, it allows you and your partner to make informed decisions about how you want to treat separate and marital property going forward.
Any couple might want to consider a prenup when…
- One partner brings significant debts or assets into a marriage.
- One partner is significantly more wealthy or less wealthy than the other.
- One partner stands to inherit significant wealth.
- One or both partners have children from a prior marriage.
- One or both partners own a business.
- One partner will be a stay-at-home parent and the other will work.
- One partner will spend a significant portion of time in school; or you’ll use community resources to support one or both spouses through school.
If you have questions about how getting married could affect your property rights, estate planning, and retirement as an LGBTQ couple, reach out to the LGBTQ prenup lawyers in Washington at Truce Law today. We can help you address the unique challenges that LGBTQ couples face, while helping you draft a prenup that works for you.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.