Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Whiting, S.J.
DEBRA B. PYSELL
OPINION BY
v. Record No. 010506 SENIOR JUSTICE HENRY H. WHITING
March 1, 2002
ANGELIA D. KECK, EXECUTOR
OF THE ESTATE OF DAVID ANTHONY PYSELL
FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
Humes J. Franklin, Jr., Judge
This appeal requires a determination of the scope of an
antenuptial agreement in our adjudication of a widow's claim
against her deceased husband's estate.
Before their marriage, Debra B. Pysell (the wife) and David
Anthony Pysell (the husband) executed an antenuptial agreement
(the agreement) which recited in pertinent part:
2. That it is the intention of the parties that each of
them shall continue to own as his or her separate property,
all of the real, personal or mixed property which they
individually own as of this date.
3. That they may hereafter individually acquire additional
property of a similar nature, and it is the intention of
the parties hereto that said property shall also be the
individual property of the person acquiring the same.
. . . .
6. . . . [It is] the intention and desire of the parties
that their respective rights to each other's property
acquired by operation of law shall be solely determined and
fixed by this agreement.
After the husband died leaving a will which made no
provision for the wife, she filed three claims against his
estate in the Circuit Court of the City of Buena Vista: (1) a
-1-
claim pursuant to Code §§ 64.1-13 and –16 for a surviving
spouse's elective share of her deceased husband’s estate, (2) a
claim under Code § 64.1-151.1 for the family allowance provided
to a surviving spouse, and (3) a claim pursuant to Code § 64.1–
151.2 for certain property claimed as exempt for the benefit of
a surviving spouse.
The executor of the deceased husband's estate filed a
declaratory judgment action in the circuit court seeking a
determination that the wife was not entitled to any of these
claims on two grounds: (1) because she and the husband "were
living in a state of permanent separation at the time of his
death as a result of the [wife's] abandonment and desertion;"
and (2) because the wife's agreement waived "any claim,
whatsoever, in the property of" the husband.
Later, the executor filed a motion for summary judgment
based on the second ground. In the wife's briefs filed in
opposition to the executor's motion for summary judgment, she
maintained that the mere recitation of the parties' intent to
hold their individual property separately in paragraphs (2) and
(3) of the agreement did not constitute a waiver of either
party's claim to the separate property of the other during their
joint lives. The wife also argued that even if the recitals in
paragraphs (2) and (3) were sufficient to constitute such a
waiver, the provisions in paragraph (6) were not a waiver of
-2-
either party's rights in the estate of the other. Hence, the
wife contended that because paragraph (6) referred only to a
waiver by each spouse of his or her statutory rights during the
marriage and in the event of a divorce, she was entitled to
assert these three claims against his estate.
After argument, the court held that paragraph (6) of the
agreement was an effective waiver of the wife's rights in the
husband's estate upon his death. Accordingly, the court entered
a final declaratory judgment for the executor. On the wife's
appeal, the parties reassert these arguments.
Both parties agree that the wife is asserting rights
against the husband's estate that would normally accrue to a
surviving spouse by operation of law. See Davis v. Davis, 239
Va. 657, 661, 391 S.E.2d 255, 257 (1990) (marital rights of
inheritance, to renounce will, and to claims of dower and
curtesy arise by operation of law). They disagree, however,
whether those rights were waived in the provisions of the three
quoted paragraphs.
We resolve their disagreement by applying familiar
principles. Antenuptial agreements, like marital property
settlements, are contracts subject to the rules of construction
applicable to contracts generally, including the application of
the plain meaning of unambiguous contractual terms. See
Southerland v. Southerland, 249 Va. 584, 588, 457 S.E.2d 375,
-3-
378 (1995) (property settlement agreement in connection with
divorce suit). And, "[c]ourts cannot read into contracts
language which will add to or take away the meaning of words
already contained therein." Id. at 590, 457 S.E.2d at 378,
(quoting Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396,
398 (1948)). Further, "[a] waiver must be express, or, if it is
to be implied, it must be established by clear and convincing
evidence." McMerit Constr. Co. v. Knightsbridge Dev. Co., 235
Va. 368, 374, 367 S.E.2d 512, 516 (1988). See also Coleman v.
Nationwide Life Ins. Co, 211 Va. 579, 583, 179 S.E.2d 466, 469
(1971).
We see nothing in the unambiguous language of the three
paragraphs which does anything more than express the intention
of the parties to continue to hold as their separate properties
any property which they "individually own[ed]" at the time of
the marriage or thereafter acquired as separate property.
Consistent with the language in paragraphs (2) and (3),
paragraph (6) provides that the parties' "respective rights to
each other's property accruing by operation of law shall be
solely determined and fixed by this agreement." All three
paragraphs deal with property of parties who were living persons
at the time. Nowhere in these three paragraphs or elsewhere in
the agreement do we find a reference to either party’s rights in
the property of the estate of the other. In other words, the
-4-
only marital rights determined and fixed by the agreement were
those of the husband and wife while they were living.
To the extent that the language in paragraphs (2) and (3)
constitutes a waiver, any such waiver is limited to a waiver of
marital rights in the property of the other spouse during his or
her lifetime. We also reject the executor's construction of the
agreement under which the wife’s waiver constitutes a surrender
of her marital rights in the husband’s estate after his death;
such a construction requires an unwarranted addition to the
plain meaning of the language contained in the agreement,
Southerland, 249 Va. at 590, 457 S.E.2d at 378, as well as an
unjustified expansion of the scope of any explicit waiver
expressed therein. McMerit, 235 Va. at 374, 367 S.E.2d at 516.
Thus, consistent with the language of paragraphs (2) and
(3), we read the plain language in paragraph (6) as referring to
the property owned by the parties during their joint lives, and
not to the property comprising the estate of the deceased
spouse. Therefore, we conclude that the trial court erred in
entering summary judgment for the executor on this issue.
Accordingly, we will reverse the judgment of the trial
court and remand the case for further proceedings.
Reversed and remanded.
JUSTICE KOONTZ, with whom CHIEF JUSTICE CARRICO joins,
dissenting.
-5-
I respectfully dissent. This is not a complicated case,
and the law applicable to its resolution, as recited by the
majority, is well established and requires no repetition here.
The essence of the required analysis is a determination of the
parties’ intent with regard to the ownership of their respective
property as expressed in the language of their agreement. In my
view, the parties’ intent to hold their property separately and,
thus, to have the corresponding right to dispose of it however
and whenever they chose is sufficiently clear from the language
of their agreement. The majority, however, limits the rights
determined and fixed by this agreement to those of the parties
while they were both living.
We know from the terms of the agreement that on January 25,
2000, Debra W. Blankenship (now Debra B. Pysell) and David
Anthony Pysell executed what they styled as an “Ante Nuptial
Agreement” in anticipation of their marriage on that same day.
This agreement satisfied the statutory requirements for a valid
“premarital agreement” pursuant to Code §§ 20-148 and –149 and,
undoubtedly, was intended as such.
With regard to the content of a premarital agreement, Code
§ 20-150 provides that:
Parties to a premarital agreement may contract
with respect to:
-6-
1. The rights and obligations of each of the
parties in any of the property of either or both of
them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer,
exchange, abandon, lease, consume, expend, assign,
create a security interest in, mortgage, encumber,
dispose of, or otherwise manage and control property;
3. The disposition of property upon separation,
marital dissolution, death, or the occurrence or
nonoccurrence of any other event;
4. Spousal support;
5. The making of a will, trust, or other
arrangement to carry out the provisions of the
agreement;
6. The ownership rights in and disposition of
the death benefit from a life insurance policy;
7. The choice of law governing the construction
of the agreement; and
8. Any other matter, including their personal
rights and obligations, not in violation of public
policy or a statute imposing a criminal penalty.
Admittedly, the premarital agreement at issue does not
expressly include every provision permitted by Code § 20-150.
Although the agreement consists of one type-written page and
makes no reference at all to this statute, it was not executed
in a vacuum and is not to be similarly interpreted.
Draftsmanship is not the issue; the parties’ intent is the
issue. Code § 20-150 is broad in scope and permits prospective
spouses to contract with regard to their property rights during
their joint lives as well as at the death of one of them. It is
-7-
in this context that the question in this case becomes whether
the language of the parties’ agreement sufficiently reflects
their intent that their agreement include property comprising
the estate of the deceased spouse.
There is no dispute that the parties intended to hold their
existing property as “separate property” and to similarly hold
subsequently acquired property in the same manner. Paragraphs
(2) and (3) of their premarital agreement express that intent
clearly and explicitly. This agreement became effective upon
the parties’ marriage, Code § 20-148, and, thus, it necessarily
follows that the parties intended by the language of these
paragraphs to hold their property as “separate property” rather
than as “marital property” following that marriage. See Code
§ 20-107.3 (defining separate and marital property and limiting
equitable distribution awards to marital property upon decree of
dissolution of marriage).
One of the primary purposes of a premarital agreement is to
establish such a distinction in the ownership of property of
married couples so that one spouse may hold property free from
any rights of the other spouse during the marriage or upon a
dissolution of the marriage. Such provisions are permitted by
Code § 20-150. Moreover, “separate property” and “premarital
agreements” have come to have commonly understood connotations
among prospective spouses such that they are commonly understood
-8-
to convey the notion that, upon marriage, the wife will have her
property, the husband will have his property, and each may
dispose of that property as if no marriage had occurred. While
certainly of no legal efficacy, that notion is not without merit
in determining the intent of parties to a premarital agreement
such as the present one, which is significantly lacking in
specificity.
In this regard, the parties’ agreement was executed without
express reference to the death of either spouse as specifically
addressed in Code § 20-150(3) and raised by implication in Code
§ 20-150(5) which addresses a will. However, in paragraph (6),
the parties did provide that it was their intent “that their
respective rights to each other’s property acquired by operation
of law shall be solely determined and fixed by this agreement.”
This paragraph must have some purpose other than, and in
addition to, the purpose of the other paragraphs in the parties’
agreement. But the majority lumps paragraphs (2) and (3)
together with paragraph (6) and concludes that these paragraphs
refer to property owned by the parties during their joint lives,
and not to property comprising the estate of the deceased
spouse. I disagree. The majority has focused entirely on the
draftsmanship of the document rather than the intent of the
parties.
-9-
As I understand the majority’s opinion, paragraph (6) of
the parties’ agreement is read as having no real purpose or
meaning. The agreement expressly addressed the parties’ intent
with regard to their property rights arising from the marital
relationship during their joint lives in paragraphs (2) and (3).
Excluding those rights, the remaining rights that could be
“acquired by operation of law” are those that accrue to a
surviving spouse. In the present case, there is no dispute that
the asserted claims by Mrs. Pysell against Mr. Pysell’s estate
pursuant to (1) Code §§ 64.1-13 and –16 (elective share of
deceased spouse’s estate), (2) Code § 64.1-151.1 (family
allowance for surviving spouse), and (3) Code § 64.1-151.2
(exempt property for benefit of surviving spouse) are acquired
by operation of law. In my view, paragraph (6) of the parties’
agreement clearly reflects the parties’ intent that Mrs.
Pysell’s right to assert these claims are to be solely
determined and fixed by the agreement. In that agreement, the
parties by the language in paragraph (2) and (3) expressed their
intent that each spouse’s property would be owned as separate
property. There is simply no language in the parties’ agreement
to suggest that the parties intended that, upon the death of one
spouse, the surviving spouse could subject the property
comprising the estate of the deceased spouse to claims acquired
by operation of the previously mentioned statutes. When fairly
-10-
considered, paragraph (6) sufficiently expresses a contrary
intent of the parties.
For these reasons, I would affirm the judgment of the trial
court entering summary judgment for the executor of Mr. Pysell’s
estate.
-11-