What Happens If We Don't Have a Prenup?

Without a prenuptial agreement, Washington's default rules decide what happens to your property, both if the marriage ends in divorce and if one spouse passes away. Understanding those defaults is the best way to decide whether they already fit your wishes or whether you want to plan around them.

The Default Applies Automatically

A prenup is simply a way to opt out of the state's built-in rules. If you never sign one, those rules apply by default, and they may not match what you would have chosen. Washington is a community property state, which means the law comes with a ready-made framework for dividing what a couple owns. Not having a prenup does not leave a blank slate; it puts you squarely under that framework.

What Happens at Divorce

If a marriage ends in dissolution and there is no valid prenup, the court divides property under Washington's community property system. The starting point is classification. Under RCW 26.16.030, most of what a couple earns or acquires during the marriage is community property belonging to both spouses, including wages, retirement contributions accrued during the marriage, and assets bought with marital earnings.

But classification is only the beginning. When it comes time to divide, RCW 26.09.080 directs the court to distribute all of the property and debts, both community and separate, in whatever way is "just and equitable" after considering factors like the length of the marriage, the nature and extent of the community and separate property, and each spouse's economic circumstances. Two points surprise many people. First, the division does not have to be an even split; the judge has broad discretion. Second, even property you would think of as separate, such as something you owned before the marriage, can be reached and reallocated if the court decides that is just and equitable. Without a prenup drawing firm lines, a great deal is left to the court's judgment.

What Happens at Death Without a Will

The default rules do not stop at divorce. They also govern what happens when a spouse dies. If a spouse dies without a will, Washington's intestate succession statute, RCW 11.04.015, decides who inherits. The surviving spouse receives all of the deceased spouse's share of the community property. As for the deceased spouse's separate property, the surviving spouse's share depends on who else survives: one-half of the separate estate if the deceased is survived by children or other descendants, three-quarters if there are no descendants but a parent or sibling survives, and all of it if there are no descendants, parents, or their descendants.

That means the surviving spouse does not automatically inherit everything. If the deceased spouse had children, whether from this marriage or an earlier one, those children can take a share of the separate estate directly under the statute. For blended families in particular, this default can produce results the couple never intended.

The One-Half Limit on Community Property

Even a spouse who does write a will faces a built-in limit on community property. Under RCW 26.16.030, neither spouse may give away by will more than one-half of the community property. Each spouse effectively controls only his or her own half. So a spouse cannot leave the entire family home or the whole community bank account to someone else and cut the surviving spouse out of it; the surviving spouse's one-half community interest is protected by law. This is another default that operates quietly in the background whether or not a couple has thought about it.

Why This Matters for Blended Families and Business Owners

For many couples, the default rules are perfectly acceptable, and no agreement is needed. But for others, the defaults create real risk. A business owner may not want a divorce court applying its just-and-equitable discretion to a company built over decades. A parent remarrying later in life may not want the intestacy statute dividing separate property between a new spouse and children from a prior marriage in proportions no one chose. In these situations, the combination of a prenuptial agreement and a well-drafted will lets a couple set their own terms rather than accepting the state's.

A Note for Snohomish County Families

Here in Snohomish County, where home values have risen sharply and many households blend children from more than one relationship, the default rules can carry unexpected weight. A house purchased during the marriage is likely community property, and its division at divorce or its treatment at death follows the statutes above unless the couple has planned otherwise. Both dissolution and probate matters are handled in the Superior Court here, applying these same Washington rules. Understanding how they would play out for your family is the first step toward deciding whether to plan around them.

Deciding Whether the Defaults Fit You

The real question is not simply whether you have a prenup, but whether Washington's default rules already reflect your wishes. For some couples they do. For others, especially business owners and blended families, a prenuptial agreement paired with sound estate planning offers control and peace of mind that the defaults cannot.

If you would like to understand how these rules would apply to your family and whether planning ahead makes sense, the Law Office of Chad Foster is here to help you weigh your options. Reach out to start the conversation.