Law Office of John S. Palmer Attorney at Law

Last-Minute Prenups

Posted Sunday, March 24, 2013 by John S. Palmer

It is a common belief that a prenuptial agreement is automatically invalid if signed too close to the wedding date. There is no such bright-line rule in Washington and the case law indicates that signing a prenup on the eve of a wedding will not, by itself, render it invalid.

It is well established in Washington that burden is on the party seeking to enforce a prenuptial agreement to prove its validity. This burden can be met by proving that it was either substantively or procedurally fair at the time it was signed. An agreement will be found to be substantively fair if provides a fair and reasonable provision for the party not seeking enforcement. If a court finds the agreement to be substantively fair, the inquiry ends; otherwise, to determine whether the agreement may still be upheld as procedurally fair, a court will consider (1) whether there was full disclosure by the parties of the amount, character, and value of the property, and (2) whether the agreement was entered into freely and voluntarily, upon independent advice, and with full knowledge by both spouses of their rights.

In Kellar v. Estate of Kellar, decided December 31, 2012, the Washington Court of Appeals upheld a prenuptial agreement signed 5 days before the parties married. The court noted that the wife, who challenged the agreement after her husband’s death, was represented by independent counsel when she signed the agreement; that her attorney negotiated proposed changes and did not testify that he needed more time to review it. The court also noted that there was no evidence to support the wife’s claim that she signed the agreement under pressure and that she acknowledged in the agreement that her late husband had made a full disclosure of her assets.

The court distinguished the wife’s situation from prior cases where last-minute prenups had been invalidated. In Marriage of Bernard (2009), there was evidence that the challenging spouse’s attorney had not had sufficient time to review the agreement or make a counter proposal. In Marriage of Foran (1992), the wife established that she was under a great deal of pressure to sign the agreement and did not have time to obtain independent legal advice. And in Estate of Crawford (1986) the surviving spouse successfully challenged her prenup by demonstrating that she had seen the agreement for the first time 3 days before the wedding, signed it that day, and did not have time to seek independent counsel before signing it.

In Kellar the Court of Appeals also rejected the surviving spouse’s claim that the procedural fairness test required a finding that she received “effective counsel” (i.e. that the lawyer she consulted gave her good advice and accurately advised her of her legal rights before signing.) The court said that the procedural fairness test only requires that each spouse have adequate opportunity to consult with independent legal counsel, and a “spouse who receives ineffective assistance during prenuptial negotiations and is not made fully aware of her legal rights may have a claim against her attorney, but she does not have a basis to invalidate the prenuptial agreement itself.” To rule otherwise, the court said, would require an invasion of the attorney-client privilege in order to permit each spouse to have confidence that the other received good legal advice.

UPDATE JUNE 14, 2013: A Petition for Review of the Kellar decision has been filed with the Washington Supreme Court. The court is expected to decide whether to accept review when it meets in October.

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