Free West Virginia Prenuptial Agreement Template

A West Virginia prenuptial agreement, also called an antenuptial agreement, is made before marriage to settle property rights. West Virginia Code § 48-1-203 defines these agreements, and West Virginia court decisions set the test for enforcing them.

The statute describes what these agreements can do, while case law covers validity.

What the Statute Covers

Under § 48-1-203, the agreement can define each partner’s property rights during the marriage or at death. It may also address marital property at annulment, divorce, or separation.

Both Parties Must Be Adults

The same section says a prenuptial agreement is void if either party is a minor when it’s made.

Valid Procurement

In Gant v. Gant (1985), the Supreme Court of Appeals set the core test. A valid agreement must be signed voluntarily, with knowledge of its content and legal effect, and without fraud, duress, or misrepresentation.

Independent counsel helps show those things. Still, Gant also says counsel isn’t a prerequisite when the terms are understandable to a reasonably intelligent adult and both parties had the chance to consult a lawyer.

Not strictly, but it matters a great deal. In Ware v. Ware (2009), the court held that the presumption of validity applies only when both parties have independent counsel. When only one party has a lawyer, the spouse seeking enforcement carries the burden of proving validity.

A 2023 decision shows how that plays out. In Gochenour v. Gochenour, the husband’s lawyer drafted the agreement, and no one urged the wife to get her own counsel. Both spouses also testified they didn’t understand the legal wording.

The husband proved the wife signed voluntarily and without duress. However, he couldn’t prove she understood the agreement’s content and legal effect, so the Intermediate Court of Appeals affirmed that it was unenforceable.

For that reason, a West Virginia prenuptial agreement should use plain language and give each partner real access to a lawyer.

1. Confirm both partners are adults. A minor’s agreement is void.
2. Use plain language. Terms should be clear to a reasonably intelligent adult.
3. Encourage separate lawyers in writing. Two lawyers preserve the presumption of validity.
4. Explain the legal effect. Walk through what each partner gives up.
5. Sign without pressure. Keep records showing a voluntary process.

A West Virginia prenuptial agreement typically covers:

• Each partner’s rights in property during the marriage
• What happens to property at death
• Division of marital property at divorce or separation
• A written inventory of both partners’ finances
• An acknowledgment that each partner could consult counsel
• Each partner’s dated signature