Virginia Postnuptial Agreement Template

A Virginia postnuptial agreement explains how two married people will divide their marital property if their marriage terminates due to divorce or death. Postnups are helpful because they let couples structure their financial situations according to their preferences instead of making them default to the state’s rules.

Postnups differ from prenuptial agreements in that couples sign prenups before marriage, while couples sign postnups after they marry. Virginia has similar rules for prenups and postnups.

Legal Considerations

• Signing Requirements: Both parties shall sign this agreement (§ 20-149).
• Dividing Property: Equitable division (§ 20-107.3).

Asset and Property Rights

Property Ownership

• Spouses can dispose of, control, use, hold, and acquire property as if they were unmarried. [1]

Wife’s Separate Property

• Separate property refers to the following [2] :
  • All personal and real property acquired by either party before the marriage;
  • All property acquired during the marriage by survivorship, descent, devise, bequest, or gift from a source other than the other party; and
  • All property acquired during the marriage from the proceeds of or in exchange for the sale of separate property.

  Business and Earnings

  • Income generated from separate property during the marriage remains separate property if it’s not attributable to either party’s personal effort.

  Marriage and Divorce

  Separation Agreement

  • Even though state law doesn’t recognize legal separation, it allows for a spouse to petition a court for separate maintenance or a “divorce from bed and board.” [3][4]

  Spousal Support

  • The court shall consider the factors and circumstances that led to the marriage’s dissolution when determining whether to award maintenance and support to a spouse. [5]

  Marriage Solemnized Out of State

  • Marriages solemnized out-of-state should be valid as if they were performed in the Commonwealth of Virginia. [6]

  Estate Planning and Inheritance

  Nonprobate Transfers on Death

  • A provision for a non-probate transfer on death in a postnup is non-testamentary. [7]
  • Non-testamentary transfers are arrangements where someone’s money goes to another person after death without going through a will. These transfers can occur in a few ways:
    • The person who dies can specify in a postnup that certain money should go to a particular person after death.
    • If there’s an agreement where money is owed, but the person who was supposed to receive it dies before they get paid, the payment stops.
    • If someone owns the property and writes in a postnup that it should go to a specific person when they die, the transfer can happen without going through a will.

    Inheritance Rights

    • If a testator (author of a last will) doesn’t include their spouse in their will, and the spouse married the testator after they wrote the will, the omitted spouse must receive a share of the estate as if the decedent had died without a will.
    • However, if it’s evident from the will or a valid postnup that the testator intentionally left out their spouse, the omitted spouse won’t automatically receive a share of the estate. [8]

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    1. § 55.1-200. https://law.lis.virginia.gov/vacode/title55.1/chapter2/section55.1-200/
    2. § 20-107.3. https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.3/
    3. § 20-155. https://law.lis.virginia.gov/vacode/title20/chapter8/section20-155/
    4. § 20-116. https://law.lis.virginia.gov/vacode/title20/chapter6/section20-116/
    5. § 20-107.1. https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.1/
    6. § 20-37.1. https://law.lis.virginia.gov/vacode/title20/chapter2/section20-37.1/
    7. § 64.2-620. https://law.lis.virginia.gov/vacode/title64.2/chapter6/section64.2-620/
    8. § 64.2-422. https://law.lis.virginia.gov/vacode/title64.2/chapter4/section64.2-422/

    

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