IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 3, 2004 Session
IN RE: THE ESTATE OF J. D. DAVIS, DECEASED
Direct Appeal from the Circuit Court (Probate Division) for Davidson County
No. 02P859 Frank G. Clement, Jr., Judge
No. M2003-02614-COA-R3-CV - Filed September 2, 2004
The probate court awarded summary judgment to Defendants/Appellees upon determining that,
under Florida law, the antenuptial agreement entered into by Plaintiff/Appellant and Deceased was
valid and enforceable. On appeal, Plaintiff/Appellant argues that the agreement is not enforceable
as a violation of Tennessee public policy and by reason of duress. We reverse the award of summary
judgment and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY
M. KIRBY , J., joined.
Overton Thompson, III, Nashville, Tennessee, for the appellant, Dorothy L. Davis.
Thomas O. Helton and Sheri A. Fox, Chattanooga, Tennessee, for the appellees, J. Douglas Davis
and Julie Ann Davis Griffin.
OPINION
This appeal requires us to construe an antenuptial agreement (“the agreement”). The facts
relevant to our disposition of this appeal are undisputed. Plaintiff/Appellant, Ms. Dorothy L. Davis
(Ms. Davis), a resident of Florida, and her late husband, J. D. Davis (Mr. Davis), a domiciliary of
Tennessee, met in the spring of 1989 and married in July 1990. At the time of their marriage, Mr.
Davis was 75 years of age and Ms. Davis was 66 years of age. Both Mr. Davis and Ms. Davis had
been married previously, and both had children from their previous marriages. They were engaged
for over a year before marrying, and their wedding date was postponed at least once. At the time of
their marriage, both were in good health and were comfortable financially. They lived in Nashville,
Tennessee, for six months of the year and in Florida for the remaining six months. Mr. Davis
remained domiciled in Tennessee. Mr. Davis and Ms. Davis executed their antenuptial agreement
at the offices of Mr. Davis’ legal counsel in Florida on July 19, 1990, one day before their marriage.
The agreement was notarized by a Florida notary.
The agreement executed by Mr. Davis and Ms. Davis provided, inter alia:
2. WAIVER OF RIGHT OF ELECTION. Each of the parties waives and
releases any rights as surviving spouse to elect to take against the other’s will,
whether heretofore or hereafter made. This provision shall constitute a waiver and
release of the right of election in accordance with the requirements of the Estates,
Powers and Trusts Law of the State of Florida or of the same or similar law of any
other jurisdiction which may be applicable.
3. RELEASE OF MARITAL RIGHTS. Each of the parties hereby waives
and releases all rights and interest, statutory or otherwise, including by not limited
to homestead, dower, spouse’s allowance statutory allowance, distribution in
intestacy, and right of election to take against the will of each other which they might
acquire as the wife, widow, husband, spouse, heir-at-law, next of kin, or distributee
of each other, in their property, owned by them at the time of the marriage or
acquired by them at any time thereafter.
Mr. Davis died on May 9, 2002, and his Will was admitted to probate in Tennessee on May
15, 2002. In December 2002, Ms. Davis filed petitions for elective share, homestead, exempt
property, and a year’s support allowance against the estate of Mr. Davis (“the Estate”). The Estate
moved for summary judgment, arguing that Ms. Davis was not entitled to elect against Mr. Davis’
Will under the antenuptial agreement. In her response, Ms. Davis argued the agreement was invalid
and that she was, therefore, entitled to exercise her right to elective share, homestead, exempt
property, and a year’s support allowance.
The probate court determined that, under Tennessee’s choice of law provisions, Florida law
applied to the agreement. It further found the agreement to be valid and enforceable under Florida
law. The probate court entered summary judgment for the Estate in April 2003, holding that, in light
of the antenuptial agreement, Ms. Davis is not a “surviving spouse” within the meaning of section
31-4-101, Tennessee Code Annotated. Ms. Davis appeals.
Issues Presented
Ms. Davis presents the following issues, as we re-state them, for review by this Court:
(1) Whether the trial court erred by determining the antenuptial agreement is
governed by Florida law;
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(2) Whether the trial court erred by awarding summary judgment to the Estate
where a genuine issue of material facts exists regarding whether the
antenuptial agreement was a product of duress;
(3) Whether the trial court erred by awarding summary judgment to the Estate
when enforcing it violates Tennessee public policy.
Standard of Review
Antenuptial agreements are enforceable as contracts. Tenn. Code Ann. § 36-3-501(2001).
Contract interpretation is a matter of law which we review de novo, with no presumption of
correctness afforded to the trial court. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999); Tenn.
R. App. P. 13(d). We also review an award of summary judgment de novo, with no presumption of
correctness. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002).
Summary judgment is appropriate only when the moving party can demonstrate that there
are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn.
R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party moving for summary
judgment must affirmatively negate an essential element of the nonmoving party's claim, or
conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d
585, 588 (Tenn. 1998).
When a party makes a properly supported motion for summary judgment, the burden shifts
to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion
that the nonmoving party has no evidence does not suffice to entitle the moving party to summary
judgment. Id. In determining whether to award summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party's favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The court should
award summary judgment only when a reasonable person could reach only one conclusion based on
the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if
there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at
588.
Analysis
Absent a contractual choice of law provision, Tennessee courts apply the lex loci rule to
contract causes of action. Solomon v. FloWarr Mgmt., 777 S.W.2d 701, 704-05 (Tenn. Ct. App.
1989). Accordingly, the substantive law of the state in which the contract was executed governs
disputes arising from the contract. Id. An exception to this general rule is often made when the
contract is to be performed in another state and the parties envision performance in accordance with
that state's laws. Id. at n5. The primary consideration to be made in determining whether the
exception applies is whether the contract was made “in good faith with reference to the law of some
other state,” or “with [a] view to” the other state. Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493
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S.W.2d 465, 466-67 (Tenn.1973) (quoting First Am. Nat'l Bank of Nashville v. Automobile Ins. Co.,
252 F.2d 62 (6th Cir. Tenn.1958)). The intent of the parties in this regard is to be “gathered from
the terms of the instruments and all of the attending circumstances.” Id.
The agreement before us in this case contains no choice of law provision. Thus, absent a
reason for exception, the lex loci rule applies and this agreement is to be construed under Florida
law. Ms. Davis submits, however, that a genuine issue of material fact exists regarding whether the
parties intended that the agreement would be construed under Tennessee or Florida law.
Although Mr. Davis remained a domicile of Tennessee and identified Tennessee as his
residence in tax returns and in his Will, there is nothing in this record to suggest that Mr. Davis
intended that this agreement would be construed under Tennessee law. Mr. Davis entered into the
agreement while in Florida; he entered into the agreement with a Florida domiciliary; the agreement
was prepared by Florida legal counsel; during the marriage, Mr. Davis resided in Florida for one-half
of each year. Additionally, Florida law is the only law specifically referenced in the agreement.
Further, there is nothing in the record to suggest Ms. Davis believed the agreement would be
construed under Tennessee law at the time she entered into it. Thus, absent some reason for
exception, the lex loci rule would apply to this agreement, and it would be governed by Florida law.
Ms. Davis submits, however, that this contract is not enforceable because it violates
Tennessee public policy. In general, parties are free to contract under binding terms unless contrary
to an overriding social policy. Planters Gin Co. v. Federal Compress & Warehouse Co., Inc., 78
S.W.3d 885, 892 (Tenn. 2002). Thus, regardless of the generally applicable lex loci rule of contracts,
courts will apply Tennessee law under circumstances where applying the law of a sister jurisdiction
would contravene a strong public policy of Tennessee. Bowman v. Price, 226 S.W. 210, 214 (Tenn.
1920); Robinson Prop. Group, LP v. Russell, No. W2000-00331-COA-R3-CV, 2000 WL 33191371,
at *3 (Tenn. Ct. App. Nov. 22, 2000) (no perm. app. filed). A contract which violates Tennessee
public policy will not be enforceable in Tennessee, although it is enforceable in the state in which
it was executed. Martin v. Dealers Transp. Co., 342 S.W.2d 245, 249 (Tenn. Ct. App. 1961).
Florida and Tennessee law governing antenuptial agreements differ in at least one important
respect. In Tennessee, antenuptial agreements are enforceable as contracts if they have been entered
into “freely, knowledgeably and in good faith without exertion of duress or undue influence upon
either spouse.” Tenn. Code Ann. § 36-3-501(2001); Bratton v. Bratton, 136 S.W.3d 595, 599 (Tenn.
2004). Thus, to be valid in Tennessee, an antenuptial agreement requires prior adequate disclosure
and the absence of undue influence or overreaching. Bratton, 136 S.W.3d at 599. A party seeking
to enforce an antenuptial agreement in Tennessee must prove, by a preponderance of the evidence,
that the agreement was executed after
full and fair disclosure of the nature, extent and value of his or her holdings was
provided to the spouse seeking to avoid the agreement, or that disclosure was
unnecessary because the spouse seeking to avoid the agreement had independent
knowledge of the full nature, extent, and value of the proponent spouse's holdings.
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Randolph v. Randolph, 937 S.W.2d 815, 817 (Tenn. 1996).
Tennessee applies the standard enunciated in Randolph in the probate context, as well as in
the marriage dissolution context. See In Re Estate of Miller, C.A. No. 88-316-II, 1989 WL 19921,
at *2 (Tenn. Ct. App. March 8, 1989). In Estate of Miller, this Court affirmed the judgment of the
probate court setting aside the terms of an antenuptial agreement waiving the spouse’s marital rights,
including a year's support, exempt property, homestead and a distributive share of the net estate. We
held the agreement was invalid where the agreement was not entered into freely, knowledgeably and
in good faith after full and fair disclosure. Id.
Under Florida law, however, an antenuptial agreement may be held valid in the probate
context even when executed under conditions which would render it invalid in a marriage dissolution
action. Weintraub v. Weintraub, 417 So.2d 629, 630 (Fla. 1982). The Florida Code provides:
Waiver of Spousal Rights.
(1) The rights of a surviving spouse to an elective share, intestate share, pretermitted
share, homestead, exempt property, family allowance, and preference in appointment
as personal representative of an intestate estate or any of those rights, may be waived,
wholly or partly, before or after marriage, by a written contract, agreement, or waiver,
signed by the waiving party in the presence of two subscribing witnesses. The
requirement of witnesses shall be applicable only to contracts, agreements, or waivers
signed by Florida residents after the effective date of this law. Any contract,
agreement, or waiver executed by a nonresident of Florida, either before or after this
law takes effect, is valid in this state if valid when executed under the laws of the
state or country where it was executed, whether or not he or she is a Florida resident
at the time of death. Unless the waiver provides to the contrary, a waiver of "all
rights," or equivalent language, in the property or estate of a present or prospective
spouse, or a complete property settlement entered into after, or in anticipation of,
separation, dissolution of marriage, or divorce, is a waiver of all rights to elective
share, intestate share, pretermitted share, homestead, exempt property, family
allowance, and preference in appointment as personal representative of an intestate
estate, by the waiving party in the property of the other and a renunciation by the
waiving party of all benefits that would otherwise pass to the waiving party from the
other by intestate succession or by the provisions of any will executed before the
written contract, agreement, or waiver.
(2) Each spouse shall make a fair disclosure to the other of that spouse's estate if the
agreement, contract, or waiver is executed after marriage. No disclosure shall be
required for an agreement, contract, or waiver executed before marriage.
(3) No consideration other than the execution of the agreement, contract, or waiver
shall be necessary to its validity, whether executed before or after marriage.
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Fla. Stat. Ann. § 732.702(2002). Thus, in the Florida probate context, an antenuptial agreement to
waive the right of election is valid even in the absence of full and fair disclosure of the estate. A fair
disclosure is required only when such an agreement is executed after marriage.
As we consider whether enforcing the agreement as valid under Florida law would violate
Tennessee public policy, we must consider the history of Florida law governing antenuptial
agreements. The Supreme Court of Florida addressed the validity of antenuptial agreements in the
probate context in Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962). The Del Vecchio court
observed:
The relationship between the parties to an antenuptial agreement is one of
mutual trust and confidence. Since they do not deal at arm’s length they must
exercise a high degree of good faith and candor in all matters bearing upon the
contract.
Del Vecchio, 143 So.2d at 21. In consideration of this confidential relationship, the court held that,
in the probate context:
A valid antenuptial agreement contemplates a fair and reasonable provision
therein for the wife, or, absent such provision, a full and frank disclosure to the wife,
before the signing of the agreement, of the husband's worth, or, absent such
disclosure, a general and approximate knowledge by her of the prospective husband’s
property. The term ‘approximate’ is, for this purpose, held synonymous with ‘near’,
‘close to’ or ‘approaching’.
If the provision made by the agreement is not fair and reasonable then it
should be made to appear that the wife, when she signed, had some understanding of
her rights to be waived by the agreement. In any event she must have signed freely
and voluntarily, preferably, but not necessarily a required pre-requisite, upon
competent and independent advice.
Id. at 20. In Posner v. Posner, the Supreme Court of Florida held the Del Vecchio standard of
fairness of provision or knowledge of the estate was applicable to determine the validity of
antenuptial agreements in marriage dissolution actions. Posner v. Posner, 233 So.2d 381 (Fla.
1970).
In 1974, however, the Florida legislature enacted current section 732.702(2), changing the
Del Vecchio rule as it applied to the probate context. Weintraub, 417 So.2d 629, 630 (Fla. 1982).
Accordingly, under Florida law, an antenuptial agreement is valid in the probate context even absent
disclosure or independent knowledge of the estate of the other spouse. Id. The Florida statute
applies only in the probate context, however, and the Weintraub court rejected Appellant’s argument
that, for public policy reasons, the same rule should apply in marital dissolution actions. Id. at 631.
The Weintraub court observed that the Florida legislature had made a policy determination when it
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revised the Del Vecchio rule in the probate context, and that it was within the province of the
legislature to revise the rule, if it saw fit, in the dissolution context. Id. The court further stated,
“[t]his Court, however, believes that the Posner decision serves an important function in protecting
prospective spouses from being bound by unfair agreements[.]” Id.
Unlike the Florida legislature, the Tennessee legislature has made no distinction or exception
for antenuptial agreements which ultimately are construed in the probate context. In Tennessee, an
antenuptial agreement must be entered into “freely, knowledgeably and in good faith without
exertion of duress or undue influence upon either spouse” in order to be valid in any context. Tenn.
Code Ann. § 36-3-501(2001). The courts of Tennessee, moreover, have applied the standard with
the same rigor in both the probate and dissolution contexts. See, e.g., In Re Estate of Miller, C.A.
No. 88-316-II, 1989 WL 19921, at *2 (Tenn. Ct. App. March 8, 1989).
In Bratton v. Bratton, 136 S.W.2d 595 (Tenn. 2004), the Tennessee Supreme Court recently
reiterated the philosophy which guides the courts of this state when considering agreements entered
into between spouses. In considering a postnuptial agreement, the Bratton court stated, “[b]ecause
of the confidential relationship which exists between husband and wife, postnuptial agreements are
[like antenuptial agreements] . . . subjected to close scrutiny by the courts to ensure that they are fair
and equitable.” Bratton, 136 S.W.3d at 601. The court observed that “a fiduciary duty of the highest
degree” is imposed in transactions between spouses. Id. (quoting 41 C.J.S. Husband & Wife § 87
(1991)). The Bratton court emphasized:
While it is lawful and not against public policy for husband and wife to enter into
such contracts, yet they are not dealing with each other as strangers at arm's length.
The relationship of husband and wife is one of special confidence and trust, requiring
the utmost good faith and frankness in their dealings with each other. . . .
Transactions of this character are scrutinized by the courts with great care, to the end
that no unjust advantage may be obtained by one over the other by means of any
oppression, deception, or fraud. Courts of equity will relieve against any unjust
advantage procured by any such means, and less evidence is required in such cases
to establish the fraud, oppression, or deception than if the parties had been dealing
at arm's length as strangers. . . .
Id. (quoting In re Estate of Gab, 364 N.W.2d 924, 926 (S.D.1985)(quoting Keith v. Keith, 37
S.D. 132, 156 N.W. 910, 911 (1916))).
Clearly, in Tennessee, the marriage relationship is regarded as one of utmost confidence.
Accordingly, it is the public policy of this state that agreements entered into between spouses or, in
the case of antenuptial agreements, prospective spouses, are enforceable only if they are executed
in good faith, knowledgeably, and without duress. Id.; Tenn. Code Ann. § 36-3-501 (2001). This
“highest degree” of fiduciary duty is required in light of the confidential relationship existing
between the parties at the time the agreement is made. The fact that a term of the agreement takes
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effect after the death of one spouse, rather than upon a dissolution of the marriage, does not change
the circumstances existing at the time the agreement was executed by the parties.
Tennessee’s requirements for antenuptial agreements have been developed in light of the
unique and confidential nature of the marriage relationship. “An engagement to marry creates a
confidential relation between the contracting parties and an antenuptial agreement contract entered
into after the engagement and during its pendency must be attended by the utmost good faith[.]”
Bratton, 136 S.W.3d at 601 (quoting Baker v. Baker, 142 S.W.2d 737, 745 (Tenn. 1940)).
Borrowing the now famous words of Judge Cardozo, the parties to an antenuptial agreement are
“coadventures, subject to fiduciary duties akin to those of partners . . . the punctilio of an honor the
most sensitive, is then the standard” which we shall apply to their agreements. Meinhard v. Salmon,
164 N.E. 545, 546 (N.Y. 1928). The relationship existing at the time the agreement was executed
is not altered by the context in which enforcement is sought.
The public policy of this state is found in our constitution, statutes, judicial decisions, and
common law. Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998). It is primarily within the
function of the legislature to determine public policy, although the judiciary may do so in the absence
of a constitutional or statutory directive. Id. Antenuptial agreements generally are favored by public
policy. Bratton, 136 S.W.3d 599. However, the public policy of this state, as established by the
legislature and enforced by the courts, requires that, in light of the confidential relationship between
prospective spouses, antenuptial agreements must be executed in utmost good faith, knowledgeably,
with full and fair disclosure, and without duress. Unlike the Florida legislature, the Tennessee
legislature has not altered the rules governing the execution of antenuptial agreements when
enforcement is in the probate context.
At the time he entered into the agreement, Mr. Davis was a domiciliary of Tennessee. He
remained a domiciliary of Tennessee, and thus, upon his death, his Will was subject to probate in
Tennessee courts. The parties to this action do not dispute that the Davises’ antenuptial agreement
was entered into by the parties without full and fair disclosure. Further, the Estate does not contend
that Ms. Davis had independent knowledge of Mr. Davis’ estate when the agreement was executed.
Thus, in this case, the Estate seeks to enforce a contractual term which violates Tennessee public
policy in a probate proceeding which could occur only in Tennessee.
As a matter of public policy, Tennessee requires full and fair disclosure. This policy has been
formed by the legislature and reinforced by the courts of this state. It is a policy developed in light
of the unique and confidential nature of the marital relationship, and serves to promote the highest
degree of fiduciary duty between spouses. With all due respect to the legislature of Florida, section
732.702 of the Florida code violates a substantially important public policy of the State of
Tennessee. Therefore, we decline to apply the lex loci rule to this agreement. The agreement will
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be construed under Tennessee substantive law. This holding is dispositive of this appeal and the
issue of duress is pretermitted.1
Holding
In light of the foregoing, we hold the antenuptial agreement executed by Ms. Davis and the
late Mr. Davis is unenforceable in Tennessee. Accordingly, we reverse the award of summary
judgment to the Estate and remand this action for further proceedings consistent with this opinion.
Costs of this appeal are taxed to the Appellees, J. Douglas Davis and Julie Ann Davis Griffin, Co-
Executors, for which execution may issue if necessary.
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DAVID R. FARMER, JUDGE
1
Although our holding on the issue of public policy makes it unnecessary for us to address the issue of duress,
we note that the record and Appellant’s brief create confusion regarding the date of the Davises’ marriage. This fact
would have been important in our consideration of duress. W e note, however, that counsel for the Appellees informs the
Court: “The Record below reflects some confusion over the date of marriage; however, the marriage license and
antenuptial agreement show that the parties were married in 1990.” W e highly commend Appellees’ counsel for their
candor and forthrightness to this Court.
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