Estate of Donald Thomas Schaefer

J-A06032-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF DONALD THOMAS : IN THE SUPERIOR COURT OF
SCHAEFER, DECEASED : PENNSYLVANIA
:
:
APPEAL OF: FLORENCE K. SCHAEFER :
:
:
:
: No. 352 WDA 2021

Appeal from the Order Entered February 19, 2021
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): No. 02-19-1431

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: JUNE 3, 2022

Florence K. Schaefer appeals from the Allegheny County Orphans’ Court

order determining there to be a valid prenuptial agreement between Florence

and her now-deceased husband, Donald Thomas Schaefer. On appeal,

Florence raises five discrete arguments, which collectively assert that, in

making its ruling, the lower court engaged in various abuses of discretion

and/or erroneously applied the law. We affirm.

By way of background, in August 2018, Florence and Donald, both

octogenarians, entered into a premarital agreement drafted by their shared

attorney, Jennifer Lynch Jackson, Esq.1 Prior to execution of this agreement,

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 Retired Senior Judge assigned to the Superior Court.

1Jackson is a party in this appeal and resultantly has filed a participant’s brief.
In addition to Jackson, the estate of Donald Thomas Schaefer is, too, a party
and has filed a brief.
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Jackson had not met Florence and Donald nor performed any legal services

for them. Moreover, Jackson did not prepare any written materials in advance

of the execution date.

The record reflects multiple contradictions and ambiguities between

Jackson and Florence’s remembrance of events. Largely gleaned through

Jackson’s statements, at Florence and Donald’s request, they met with

Jackson for the specific purpose of obtaining that premarital agreement.2

During their several-hour meeting, Florence and Donald indicated that they,

among themselves, had materially disclosed the financial contents of their

estates and sought to protect those assets from passing, in death, to the other

potential spouse.3 Their desire to proceed having full cognition of each other’s

assets4 was communicated and emphasized to Jackson at several points

throughout the meeting, which was conducted entirely in person. There would

be no detailed accounting or discussion of Donald’s assets or liabilities during

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2 They would also present to Jackson a document addressing religious issues
between the couple. As an addendum, they wanted it notarized and appended
to the premarital agreement. In addition, they requested that Jackson prepare
wills for them, which would further state that there was to be no cross
inheritance. Instead, their estates were to pass to their respective children
and/or heirs.

3 Jackson would later testify that Florence expressly disclaimed wanting an
asset and liability sheet attached to the premarital agreement. When it was
her opportunity to do so, Florence refuted Jackson’s statement.

4However, Florence’s recollection of her preexisting knowledge at the meeting
was that she had not been apprised of Donald’s individual retirement accounts
and stock holdings.

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this meeting.

In addition to general monetary discussions, Florence and Donald

stressed that, should Donald precede Florence in death, Florence was

permitted to stay at his residence in the form of a life estate. This point would

later become incorporated into Donald’s will.

After Jackson obtained the necessary information from Florence and

Donald, she explained the agreement to them, line by line. When Jackson

concluded, she specifically advised Florence and Donald that they should take

the unsigned agreement home and have it reviewed by an independent

attorney of their choosing. Florence and Donald rejected this advice and

correspondingly entered into the at-issue premarital agreement.5

Florence and Donald married in the month after consummation of their

agreement. Approximately five months into their marriage, Donald died.

Following Donald’s death, his will was probated. Thereafter, Florence

filed a declaratory judgment action, asserting the agreement to be void

because of Jackson’s professional negligence that surrounded the construction

of the agreement. Specifically, Florence identified that Jackson did not

properly explain the agreement to her, failed to draft the agreement correctly,

and incorrectly executed the document. Moreover, Florence sought damages

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5 Although the agreement indicates that each party was to be given a copy for
review prior to his or her signature date, Florence and Donald signed the
agreement the same day as they received it. See Pre-Nuptial Agreement
Hearing, N.T., 2/18/21, at 100.

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from Jackson due to, in her words, “malpractice.” Appellant’s Brief, at 10.

Simultaneously, Florence sought her elective share from Donald’s estate.

Ultimately, after the denials of both Florence’s motion for summary

judgment and Donald’s estate’s motion for judgment on the pleadings, the

premarital agreement’s validity, the subject of the case presently before this

Court, would be litigated in orphans’ court, with Florence advancing several

bases as to why the agreement is legally insufficient under Pennsylvania law.

Following a hearing, the court, inter alia, found Jackson’s recollection of events

to be credible and determined the agreement to be valid.6

Thereafter, Florence filed a timely notice of appeal. The relevant parties

have complied with their Pennsylvania Rule of Appellate Procedure 1925

obligations, and this matter is ripe for review.

On appeal, Florence asks:

1. Did the orphans’ court abuse its discretion and err as a matter
of law by precluding her testimony in her case in chief by
improperly applying Pennsylvania’s dead man act, despite the
2005 enactment of 23 Pa.C.S.A. § 3106, which required the
orphans’ court to consider her independent knowledge of, and
fair and reasonable disclosure to her, of property and financial
obligations of her now-deceased spouse, Donald?

2. Did the orphans’ court abuse its discretion and err as a matter
of law by precluding her testimony by application of the dead
man act, despite the orphans’ court’s admission of the
testimony of the estate’s witness (Jackson, the scrivener), who
testified to disclosures and communications she had with
Florence and Donald?
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6The court also limited Florence’s testimony in accordance with Pennsylvania’s
dead man act. See 42 Pa.C.S.A. § 5930.

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3. Did the orphans’ court abuse its discretion and err as a matter
of law by applying a legal standard to set aside a premarital
agreement cited in the court’s memorandum opinion dated
September 8, 2020, rather than the proper standard set forth
in 23 Pa.C.S.A. § 3106, as amended in 2005?

4. Did the orphans’ court abuse its discretion and err as a matter
of law by finding a rebuttable presumption of validity of the
premarital agreement as detailed in the court’s memorandum
opinion dated September 8, 2020, rather than adhering to the
standard set forth in 23 Pa.C.S.A. § 3106, as amended in 2005?

5. Did the orphans’ court abuse its discretion and err as a matter
of law by holding that the premarital agreement was valid
despite the court failing to consider the substantial weight of
evidence, including the uncontradicted evidence that she had
no knowledge of Donald’s individual retirement account, stock
assets, and property before or at the time that she executed
the agreement?

See Appellant’s Brief, at 4-5.

Given the nature of this case, we begin by recognizing that “premarital

… agreements are contracts and are governed by contract law.” Stackhouse

v. Zaretsky, 900 A.2d 383, 386 (Pa. Super. 2006). On appeal from a lower

court’s decision to uphold a premarital agreement, we review for an abuse of

discretion and/or determine whether the court has committed an error of law.

See id. “An abuse of discretion is not lightly found, as it requires clear and

convincing evidence that the trial court misapplied the law or failed to follow

proper legal procedures.” Id. Additionally, we “will not usurp the trial court’s

fact[-]finding function.” Id.

If the language of the premarital agreement indicates that the future

spouses have fully disclosed to one another the extent of their assets and

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what their marital rights would be in the absence of such an agreement, it is

presumed to be valid. See Cooper v. Oakes, 629 A.2d 944, 948 (Pa. Super.

1993).

However, a statutory mechanism exists to contest a premarital

agreement. A party challenging a premarital agreement must demonstrate,

by clear and convincing evidence, either: (1) he or she did not execute the

agreement voluntarily; or, (2) that prior to execution, he or she was not

provided a fair and reasonable disclosure of the property or financial

obligations of the other party; he or she did not voluntarily and expressly

waive, in writing, any right to disclosure of the property or financial obligations

of the other party beyond the disclosure provided; and he or she did not have

adequate knowledge of the property or financial obligations of the other party.

See 23 Pa.C.S.A. § 3106(a) (emphasis added) (effective January 28, 2005).

Here, Florence seeks what she believes is her unfettered right to a

statutory share of Donald’s estate. See 20 Pa.C.S.A. § 2203(a) (giving a

surviving spouse the “right to an elective share of one-third of the

[enumerated] property[]”). However, she acknowledges that “[t]he right of

election of a surviving spouse may be waived, wholly or partially, before or

after marriage or before or after the death of the decedent.” Id., at § 2207;

see also Appellant’s Brief, at 17.

Falling under the auspice of her first issue, Florence contends that the

at-issue agreement does not contain an “expressly stated surrender of right

of election.” Appellant’s Brief, at 18. Florence insinuates, at least in part, that

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because the agreement makes no mention of “statutory rights” and contains

no language unambiguously disclaiming her elective share of the estate, it

cannot serve as a basis to prevent her from obtaining that share. See In re

Estate of Hartman, 582 A.2d 648, 651 (Pa. Super. 1990) (remarking that a

premarital agreement is valid “only if a full and fair disclosure of the decedent’s

financial condition and the statutory rights being waived … was made”).7

Florence also avers that, prior to signing the agreement, she never

received the legally required financial disclosures from Donald. See Paroly v.

Paroly, 876 A.2d 1061, 1067 (Pa. Super. 2005) (“[W]here the circumstances

indicate that a spouse has knowledge of the general value of the couple’s

assets, an agreement will be upheld, especially where … the agreement recites

that a fully and fair disclosure was made.”). Stated differently, Florence

submits that “[t]he record here is devoid of circumstances indicating that

[she] had knowledge of the general value of the couple’s assets.” Appellant’s

Brief, at 22 (identifying Florence’s lack of knowledge as to Donald’s stock and

individual retirement account holdings at the point when the agreement was

signed).

Most importantly, however, Hartman, as well as many of the other

cases relied upon by the estate and lower court, was decided prior to the

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7 Florence also illuminates that Hartman, as a case relied upon by the estate,
featured a situation where the scrivener, in fact, orally discussed the parties’
assets prior to execution and indicated as much in the agreement, stating that
each party had “made a complete disclosure to the other of his or her financial
condition.” 582 A.2d at 651.

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enactment of Section 3106. Interpretation of that Section and its resulting

applicability is the crux of Florence’s present appeal. In short, when the lower

court prevented Florence from testifying under the dead man act, it was

“contrary to the intent of the legislature as evidenced by the clear language

of [Section] 3106.” Appellant’s Brief, at 24 (asserting, further, that utilization

of the dead man act “to preclude testimony of the surviving spouse would be

to find that surviving spouse can never prevail under [Section] 3106[] because

only a surviving spouse can offer the affirmative evidence required under the

statute”).

In relevant part, the agreement between Florence and Donald states

that:

Parties acknowledge that they have been advised that by virtue of
their marriage each will have an interest in the other’s estate or
any intestacy. It is the intention of the parties that each party will
waive any interest that he or she may have in the estate or any
intestacy of the other.

Pre-Nuptial Agreement, 8/20/18, at ¶ 5.01. Furthermore, the agreement

establishes that each party “has given the other a full and complete disclosure

of his or her property and income as of the date of this [a]greement.” Id., at

¶ 2.02.

Except as otherwise provided by statute or in our rules of evidence,

every person is competent to be a witness. See Pa.R.E. 601(a). One statute

in particular, Pennsylvania’s dead man act, provides that

in any civil action or proceeding, where any party to a thing or
contract in action is dead … neither any surviving or remaining

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party to such thing or contract, nor any other person whose
interest shall be adverse to the said right of such deceased … shall
be a competent witness to any matter occurring before the death
of said party[.]

42 Pa.C.S.A. § 5930. With the onus being on the party seeking to set aside a

premarital agreement and in the event the other party becomes deceased,

under a rote application of the dead man act, availing oneself of Section 3106

becomes a difficult task, as he or she, absent limited exceptions, would be

foreclosed from providing testimony on anything relevant to the creation of

the agreement.

It is uncontested that Donald’s estate has an interest in the present

matter. In addition, in seeking her elective share, Florence’s interest is

adverse to that of the estate. The dead man act would, therefore, disqualify

Florence from testifying in this domain. See Hartman, 582 A.2d at 652 (“The

Pennsylvania Supreme Court has consistently held that the Dead Man’s Act

precludes testimony by the surviving spouse against antenuptial …

agreements.”). Here, faced with a similar set of facts as Hartman wherein

that appellant claimed he did not understand his premarital agreement nor

have the opportunity to review it with counsel, the trial court prohibited

Florence from testifying as to discussions that she had with Donald prior to

the couple’s meeting with Jackson. See id. (ascertaining that “the testimony

[the appellant] sought to present concerned [an] antenuptial agreement, a

civil contract entered into with his wife during her lifetime. Testimony

regarding a contractual relationship between the decedent and surviving

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spouse is clearly proscribed under the Dead Man’s Act[]”).

Florence has not provided any salient reason for this Court to overlook

the plain text of the dead man act. Although it was enacted more recently

than the dead man act, Section 3106 does not provide any exception that

would obviate that act’s application. Instead of designating what constitutes

competent evidence or allowing for the circumvention of the dead man act,

Section 3106 merely prescribes the path a party must take to set aside a

premarital agreement. By overlooking the dead man act and making it

permissible for unbound testimony from a living party, it would be tantamount

to creating a new evidentiary right for those seeking to not be bound by a

premarital agreement. Instead, we see no reason to conclude that the lower

court abused its discretion or committed an error of law when it prohibited

Florence from testifying to events prior to the meeting with Jackson.

To the extent that Florence asserts that the agreement did not

sufficiently indicate that she was waiving her statutory rights, presumably

seeking some sort of specific verbiage to that effect, she has provided no

support for the proposition that the literal language used in the present

agreement is deficient. The agreement clearly contemplates waiver of a right

to the other party’s estate. As to whether Florence received the legally

required financial disclosures from Donald, the court found Jackson to be

credible when she unequivocally indicated that Florence and Donald had

materially discussed all of Donald’s assets in a way that was satisfactory for

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both signators to the premarital agreement and that Florence wanted no

corresponding list of assets and debts prepared. We reiterate that the burden

of proof is on the party seeking to set aside a premarital agreement by clear

and convincing evidence. While, perhaps, it would have been more prudent to

delve, at least cursorily, into those assets at the meeting, we find no abuse of

discretion or error of law in the court’s determination, given Jackson’s clear

testimony as to Florence’s level of financial knowledge and Florence’s then-

desire to not delve into the specifics of Donald’s assets.

In her second issue, which is intrinsically related to her first, Florence

claims that by permitting Jackson to testify, the court inherently “opened the

door” for Florence’s testimony regardless of the prohibition contained in the

dead man act. In other words, Florence “should have been permitted to fully

testify as to the August 20, 2018 meeting at attorney Jackson’s office without

limitation.” Appellant’s Brief, at 27. Instead, Florence was only allowed to

“testify to the very limited scope to rebut the testimony of attorney Jackson.”

Id.

Jackson, among other things, indicated that, at the meeting, Donald and

Florence conveyed to her that they had discussed assets prior to the

agreement’s execution date. Correspondingly, despite the dead man act, the

court permitted Florence to testify to matters in which Jackson was a witness,

namely the meeting between Jackson, Florence, and Donald. See 42 Pa.C.S.A.

§ 5933(a); see also In re Estate of Cecchine, 485 A.2d 454, 459 (Pa.

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Super. 1984) (“[T]he surviving party is competent only for the purpose of

contradicting the matters testified to by the living witness.”) (citation

omitted). Explicitly, the court allowed inquiry of Florence into whether Jackson

accurately summarized what had happened on the date of execution,

expressly allowing for rebuttal of any of Jackson’s statements. See N.T.,

2/18/21, at 113.

To Florence, when the attorney representing Donald’s estate asked her

what the purpose of her visit with Jackson was, that question was “outside of

the scope of her rebuttal testimony and touched on matters for which the trial

court would not let her testify[.]” Id., at 28. This “ask” made her competent

to testify on her own behalf as to all relevant matters.

We disagree and find that Florence has failed to demonstrate that this

sole question on cross-examination allowed her testimony to, thereafter,

exceed the scope of Section 5933. Preliminarily, we note that Florence did not

make a contemporaneous objection to this question. Moreover, it is unclear

whether this discrete issue is fairly suggested by her concise statement of

matters complained of on appeal. See Trial Court Opinion, 8/3/21, at 3 (“It is

difficult, one may say, impossible to ascertain what precisely Florence

complains about here.”). Consequently, this issue has arguably been waived.

See, e.g., Commonwealth v. Butler, 812 A.2d 621, 634 (Pa. 2002).

Even if it is not waived, we find no merit to Florence’s claim. After she

was asked, on direct examination, questions about what she knew at the time

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of the meeting, there was a cross-examination question seeking to define the

overall point of the meeting. Such a question was not only germane to and

within the scope of what Jackson had already stated, but it was also relevant

to issues contained within the case. See Pa.R.E. 611(b). As the court allowed

her to testify to events on the execution date, Florence fails to elaborate or

provide support for how an inquisition into the meeting’s purpose transcends

the bounds of either Jackson’s testimony or the questions asked of her on

direct examination. Consequently, her claim warrants no relief.

In Florence’s third issue, she contends that the court did not employ the

proper standard, as defined in Section 3106, in reaching its conclusion that

the premarital agreement was enforceable. Distilled down, Florence avers that

Section 3106 abrogated Simeone v. Simeone, 581 A.2d 162 (Pa. 1990),

insofar as that Section does not contain the presumption of full disclosure of

financial assets that follows when an agreement’s language indicates the

same. See Appellant’s Brief, at 31-32. Accordingly, “the standard set forth by

the trial court relying on Simeone does not comport with the state of the law

in the Commonwealth of Pennsylvania.” Id., at 32.

While Florence is correct in that Section 3106 does not have any

presumption of validity contained within its text, the burden of proof, at the

heightened standard of clear and convincing evidence, is on the party seeking

to render the agreement unenforceable. See 23 Pa.C.S.A. § 3106. Other than

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citing to the comment that corresponds with Section 3106,8 Florence has not

offered any basis to depart from Simeone.

Although it was in the context of a marital settlement agreement, this

Court relied upon Simeone in Bennett v. Bennett, 168 A.3d 238, 245 (Pa.

Super. 2017). Therein, we reinforced the notion that “[a]bsent fraud,

misrepresentation, or duress, spouses should be bound by the terms of their

agreements.” Bennett, 168 A.3d at 245, quoting Simeone, 581 A.2d at 165.

To that end, “[i]f an agreement provides that full disclosure has been made,

a presumption of full disclosure arises.” Id. (stating, further, that “an

agreement is valid even if it does not contain financial disclosure itself and can

be upheld if it merely recites that such disclosure has been made[]”) (citation

omitted).

Here, similar to Bennett, there is a disclosure recital contained within

the agreement. That said, we agree with Florence that Section 3106 does not

specify fraud, misrepresentation, or duress as ways to attack a premarital

agreement. However, as has been stated, supra, the relevant part of that

Section’s verbiage is derived from Simeone’s approach. Accordingly, in

seeing no basis to depart from Simeone’s presumption of full disclosure and

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8 That comment, in relevant part, states: “Section 3106 is new. Currently,
premarital agreements are governed by case law.” 23 Pa.C.S.A. § 3106,
Comment. However, it does not provide for any kind of specific deviation from
prior case law. In fact, the comment establishes that most of its text
“encompasses the approach of Simeone.” Id.

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given that the very language of the text places the burden on the agreement’s

challenger, Florence would have to demonstrate by clear and convincing

evidence, inter alia, that she was not provided a fair and reasonable disclosure

of Donald’s assets and did have adequate knowledge of the same. See 23

Pa.C.S.A. § 3106. As the court accepted Jackson’s version of what had

happened on the date of execution, wherein she unambiguously indicated that

Florence was fully cognizant of Donald’s assets and wanted to proceed with

the premarital agreement, Florence failed to meet her burden.

In Florence’s fourth claim, which is in many ways similar to her third,

she contends that the court’s “erroneous application of a presumption of

‘validity,’ contrary to [Section] 3106, created a burden upon [her] … that did

not exist.” Appellant’s Brief, at 33. Instead, Florence “merely had to establish

the elements” as outlined in Section 3106’s subsection (a)(2). Id.

Even accepting there to be no literal presumption contained in Section

3106, Florence appears to be arguing a semantical distinction. The plain text

of Section 3106 clearly designates that the burden is placed on the individual

challenging the premarital agreement. Anything less than a demonstration by

clear and convincing evidence compels the court to maintain the premarital

agreement, as written. Therefore, it strains credulity to interpret Section 3106

as anything other than creating a presumption in favor of validity. Florence

had no additional burdens independent of those already contained in Section

3106. Accordingly, she is due no relief.

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In her fifth and final issue, Florence suggests that the court’s

determination that the premarital agreement was valid was against the

substantial weight of the evidence. Florence bolsters this position by

identifying that there was no disclosure of Donald’s assets during the meeting

with Jackson. “Even if attorney Jackson’s testimony is accepted as true, it does

nothing to establish the substance of disclosure of property and financial

obligations.” Appellant’s Brief, at 35. Florence asserts that the only testimony

of record that is directly on point to whether Donald disclosed his assets is

Florence’s denial that she knew of his stocks or individual retirement account.

As no evidence to the contrary of this proposition was presented, Florence

established the relevant requisite elements of Section 3106.

Despite Florence’s intimation, Jackson directly testified that, at several

points during the meeting, Jackson confirmed that Donald and Florence

disclosed their assets and debts to each other. See N.T., 2/18/21, at 83.

Jackson stated that “Florence did not want a list prepared of assets and debts.

[The three] talked about it at length and went through it numerous times.

[Florence] said that they had discussed it among themselves and that there

were both satisfied with their discussions[.]” Id., at 85. The agreement itself

also designates that the parties were given a full and complete disclosure of

each other’s assets, that the parties had the ability to seek out independent

counsel for review of the agreement, that they were waiving any interest in

each other’s estates, and that the agreement was the complete understanding

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of the parties. Clearly, then, there is evidence of record, both in the form of

testimony and documentary, indicating that Florence knew of Donald’s assets.

Instead, Florence is effectively asking the court to reweigh the evidence

as utilized and thereafter ruled upon by the lower court.9 “Our standard of

review of an orphans’ court’s decision is deferential.” In re Estate of

Strahsmeier, 54 A.3d 359, 363 (Pa. Super. 2021) (citation omitted).

“Because the Orphans’ Court sits as the fact-finder, it determines the

credibility of the witnesses and, on review, we will not reverse its credibility

determinations absent an abuse of discretion.” Id., at 363-64.

Here, the lower court found Jackson to be credible and Florence, at a

minimum, to be not credible insofar as she needed to demonstrate her position

by way of clear and convincing evidence. Jackson’s testimony, when coupled

with the language of the agreement itself, serves to indicate that Florence was

“provided a fair and reasonable disclosure” and had “adequate knowledge” of

Donald’s assets. See 23 Pa.C.S.A. § 3106(a)(2)(i), (iii). Consequently, the

lower court did not commit and error of law or abuse its discretion when it

ascertained that the evidence presented by Florence failed to meet her burden

to set aside the agreement.

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9To the extent Florence attempts to, instead, define the legal parameters of
what actually constitutes insufficient knowledge in a successful Section 3106
challenge, she has not articulated with any specificity what would have been
necessary other than emphasizing her original position, which refuted that she
was ever apprised of Donald’s assets and indicated that none of his particular
assets were discussed during the meeting with Jackson.

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As we find no basis to reverse the orphans’ court’s determination that

the premarital agreement between Florence and Donald is valid and

enforceable, we are constrained to affirm the lower court’s order determining

the same.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2022

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