concurring in part and dissenting in part. I concur in the majority’s well-reasoned conclusion that the doctrine of constructive fraud is applicable to antenuptial agreements.
I must, however, take issue with the majority’s decision to reinstate the trial court’s grant of summary judgment in favor of the appellant, *93Esther Tort Cohen. For the following reasons, I believe that summary judgment is not appropriate in the instant case.
While the doctrine of constructive fraud does not require proof of fraudulent intent, one who alleges a constructive fraud must demonstrate that he or she was in fact deceived. Where it is alleged that a fraudulent conveyance defeated the intent of the antenuptial agreement, appellant must show that the conveyance was undertaken without her knowledge or consent. As we stated in Perlberg v. Perlberg (1969), 18 Ohio St. 2d 55, 58 [47 O.O.2d 167], the theory of constructive fraud alleged in cases such as this is based on a fiduciary relationship between the parties which “is of such a confidential nature that a conveyance of property owned by a man prior to marriage without the knowledge of the intended wife is fraudulent, at least to the extent of the interest she would acquire after marriage.” (Emphasis added.) Accord Ward v. Ward (1900), 63 Ohio St. 125, 126-127. In the context of the instant case, nondisclosure of a transfer of real property prior to the marriage could have operated as a constructive fraud on appellant’s rights arising from the antenuptial agreement signed by the parties. We observed in Gross v. Gross (1984), 11 Ohio St. 3d 99, 108, that when entering into an antenuptial agreement “[t]he parties must act in good faith, with a high degree of fairness and disclosure of all circumstances which materially bear on the antenuptial agreement.” (Emphasis added.)
The record demonstrates that, pursuant to Civ. R. 56(C), appellees have raised a question of material fact on the issue of nondisclosure, thus precluding summary judgment against them. In an affidavit attached to the memorandum opposing appellant’s motion for summary judgment, appellee Frances C. Lauter, the decedent’s daughter, states that prior to the execution of the antenuptial agreement “family discussions” were held involving herself, appellant and the decedent. Appellee Lauter states that as a result of these discussions, appellant had full knowledge that the decedent intended to transfer the real property at issue here and expressed no interest in that property.
If, prior to the signing of the antenuptial agreement, the decedent disclosed his intent to transfer that property, then appellant may not have been deceived. If appellant had knowledge of the impending transfers and made no objection to them, then there may have been no fraud, constructive or otherwise, upon her rights in the antenuptial agreement. At the least, the question raised concerning the existence of constructive fraud in this case should be answered by the trier of fact on remand. Thus, in contrast to the majority, I would not be so hasty in finding that appellant is entitled to summary judgment.
Accordingly, I respectfully dissent from that portion of the majority opinion which reinstates the trial court’s grant of summary judgment to appellant.
Wright, J., concurs in the foregoing opinion.