No. 94-363
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN THE MATTER OF THE ESTATE OF
EVERETT ALMER THIES,
ELEANOR THIES,
Petitioner/Appellant,
-V-
BARBARALOWE, PATTY CORAMand
JOHN THIES,
Respondents/Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Virginia A. Bryan, Wright, Tolliver & Guthals,
Billings, Montana
For Respondents:
James P. Healow, Sweeney & Healow, Billings, Montana
Submitted on Brief: March 23, 1995
Decided: September 21, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court
This is an appeal from a decision of the Thirteenth Judicial
District Court, Yellowstone county, declaring the widow
(Petitioner/Eleanor) cannot collect against the will of the
decedent (Everett). We affirm.
We restate the issue on appeal. Did the District Court err in
determining the prenuptial agreement between Eleanor and Everett
was valid, thus, precluding Eleanor from collecting her elective
share of Everett's estate?
Facts
Everett and Eleanor were married June 27, 1981. Both Everett
and Eleanor had been married previously. Eleanor had one child by
her previous marriage and Everett had three children by his. The
parties entered into a prenuptial agreement on June 26, 1981. This
agreement was prepared by Everett's attorney (Mr. Gunderson).
Eleanor was not represented by counsel in this matter.
The second recital to the prenuptial agreement stated:
WHEREAS, each of the parties owns individual real
and personal property, the nature and extent of the
holdings of each party having been fully disclosed to the
other; . .
Following, the first three substantive paragraphs of the
prenuptial agreement stated:
1. After the solemnization of the marriage between
the parties, each of them shall separately retain all
rights in his or her own property, whether now owned or
hereafter acquired, and each of them shall have the
absolute and unrestricted right to dispose of such
separate property, free from any claim that may be made
2
by the other by reason of their marriage and with the
same effect, as if no marriage had been consummated
between them.
2. Notwithstanding the provisions of the next
preceding and next succeeding paragraphs, any real or
personal property acquired as joint tenants during their
marriage shall, at the death of one of the parties, vest
in the survivor of them.
3. Each of the parties waives and releases all
rights as surviving spouse in the property or estate of
the other and waives the right to elect to take against
the other's will, whether heretofore or hereafter made.
Mr. Gunderson testified that he did not discuss the prenuptial
agreement with Eleanor prior to its preparation. Mr. Gunderson
inquired in the presence of Everett and Eleanor whether they
understood the agreement and were aware of the assets of the other.
Eleanor recalls that Mr. Gunderson asked Everett and her whether
they divulged their assets to each other and that Everett said they
had. Eleanor claims they had not divulged their assets and,
although she knew it at the time, she remained silent and did not
speak up.
Eleanor admits reading the agreement. She testified it was
her understanding, at the time, the gist of the agreement was that
she would not have a claim to anything which Everett and his first
wife had accumulated. Eleanor claims nobody explained to her the
nature of what was meant by waiving her elective share of the
estate. Mr. Gunderson testified Eleanor said nothing at the time
to indicate she was dissatisfied with the agreement, she did not
understand what she was signing, she was pressured or coerced into
signing it, or it only applied to property accumulated in Everett's
prior marriage.
3
At the time of his marriage to Eleanor, Everett owned his
home, two cars, personal belongings and a Piper, Jaffray & Hopwood
retirement account valued at $143,090. Eleanor had approximately
$7,000 of assets. Eleanor said she supposed Everett owned the home
he had lived in for nearly forty years, but he had never said so.
Additionally, Eleanor testified that she knew Everett had worked at
Piper, Jaffray & Hopwood since shortly after World War II but
claimed she did not know he had any retirement benefits or savings
through his employer. During their marriage, Eleanor said she quit
her job as a relator, at Everett's request, and relied on his
support.
Eleanor testified, in 1985-86, in response to a comment made
by Everett, she consulted an attorney as to the prenuptial
agreement and her financial situation. She said her attorney told
her she had signed all of her rights away and should ask Everett to
provide for her in an irrevocable will. At Eleanor's request,
Everett drafted a will devising to Eleanor $10,000 in cash,
furniture and household goods, a life estate in the family home and
earnings on a bond portfolio that he would maintain in a minimum
amount of $100,000 for Eleanor's life. The will provided "[a]~ to
the bequest to my wife, ELEANOR E. THIES, contained herein, this
Will shall be irrevocable so long as we are married and living
together."
Eleanor and Everett had marital conflict which resulted in the
filing by Eleanor of a petition for dissolution of marriage on June
6, 1991. The couple separated and Eleanor moved to Colorado. On
4
July 9, 1991, Everett prepared a new will disinheriting Eleanor and
naming his children as the sole heirs to his estate. Everett died
on March 20, 1992. The pending dissolution action was dismissed by
reason of Everett's death.
At his death, Everett's Piper Jaffray account was valued at
$333,692. Eleanor testified her net worth was under $10,000.
Eleanor filed a petition for payment of her elective share on June
19, 1992. A non-jury trial was held on December 21, 1993. The
District Court ruled the prenuptial agreement precluded Eleanor
from claiming her elective share. Judgment was entered in favor of
respondents, Barbara Lowe, Patty Coram and John Thies, on March 30,
1994. From this judgment, Eleanor appeals.
Discussion
Eleanor argues the prenuptial agreement, signed in 1981,
contained an invalid waiver under the governing statute--§ 72-2-
102, MCA (1979). Section 72-Z-102, MCA (1979), a codification of
UPC § Z-204, provides:
Waiver of rights by spouse. The right of election of a
surviving spouse and the rights of the surviving spouse
to homestead allowance, exempt property, and family
allowance or any of them may be waived, wholly or
partially, before or after marriage, by a written
contract, agreement, or waiver signed by the party
waiving after fair disclosure. Unless it 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 or
divorce is a waiver of all rights to elective share,
homestead allowance, exempt property, and family
allowance by each spouse in the property of the other and
a renunciation by each of all benefits which would
otherwise pass to him from the other by intestate
succession or by virtue of the provisions of any will
executed before the waiver or property settlement.
5
[Emphasis added. 1
Eleanor contends, prior to signing the prenuptial agreement,
Everett did not disclose his assets to her. Therefore, Eleanor
claims the agreement is not valid and she did not waive her
elective share.
Eleanor refers to our decision in Estate of Flasted (1987),
228 Mont. 85, 741 P.2d 750, where we determined a widow waived her
right to an elective share of her husband's estate in an agreement
with her brother-in-law. In that case, the widow signed an
agreement acknowledging she had rights to the property of the
estate as the deceased's widow; she was represented by an
experienced attorney who drafted the agreement; and, the brother-
in-law was not represented by counsel and was unaware of the
widow's statutory rights. Eleanor argues the agreement she signed
should be held invalid for the same reasons the widow's agreement,
in Flasted, was found valid--Eleanor did not know she had rights to
an elective share of the property; she was not represented by
counsel; and, it was Everett's attorney who drafted the agreement.
In Flasted, however, the widow's argument was based on the
ambiguity of the agreement regarding what rights she was waiving.
The agreement's ambiguity was interpreted against the widow because
it was her counsel who drafted the agreement. In the divorce
proceedings Eleanor initiated prior to Everett's death, Eleanor's
counsel stated the prenuptial agreement was "straightforward and
simple." Therefore, it's ambiguity is not at issue and the Flasted
decision does not apply.
6
Eleanor then refers to Breidenbach v. Wedum (1988), 233 Mont.
478, 760 P.2d 1237, which involves the validity of a family
settlement agreement between heirs as a renunciation of the vested
rights of a single heir. We held the settlement agreement to be
invalid because it did not describe the property or interest, nor
did it declare the extent of the renunciation. Eleanor claims her
prenuptial agreement lacked the same element--explicit disclosure.
Eleanor argues, under Breidenbach, the prenuptial agreement fails.
The heir's rights which were contested in Breidenbach vested
at the decedent's death because the heir was the named beneficiary
of a life insurance policy and was a joint tenant with the decedent
in certain property. The governing statute, § 72-2-101, MCA
(1979), specifically required that a writing, in a renunciation of
succession, shall "describe the property or part thereof or
interest therein renounced." The statute governing the waiver of
rights by a spouse, § 72-z-102, MCA (1979), requires only "fair
disclosure." Therefore, Breidenbach does not apply as well.
Eleanor asserts we should consider other states'
interpretations of fair disclosure under UPC § 2-204.
Particularly, the New Jersey Superior Court, in DeLorean v.
DeLorean (N.J. 1986), 511 A.2d 1257, prescribed that, henceforth,
prenuptial agreements must contain a written document setting forth
the assets and liabilities of both parties in order to be
enforceable. Eleanor also points to decisions of the Maine and
Florida Supreme Courts holding that specific disclosures, along
with explicit reference to the statutory rights being waived, are
7
necessary for fair disclosure. Estate of Robert Berzinis (Maine
1986), 505 A.2d 86; Estate of Galluzzo (Maine 1992), 615 A.2d 236,
238; and Oliveira v. Sturm (Fla. App. 3 Dist. 1992), 610 So.2d 108.
While detailing assets and values of each party in the
prenuptial agreement or by way of attachment or addendum might make
some sense from a drafting standpoint, as doing so would likely
render the agreement less subject to challenge, the statute at
issue here does not impose such a requirement. Rather, § 72-2-102,
MCA (1979), requires only that there be "fair disclosure" before
the agreement is entered into. It is not the prerogative of this
Court or of the trial court to insert into the statute that which
has been omitted or omit that which has been inserted. Section l-
2-101, MCA. While recognizing that other states have resolved this
issue differently, we, nevertheless, decline to read into the
statute a requirement of explicit or detailed disclosure either as
part of the agreement itself or as part of the discussions
preceding entry into the agreement since that sort of requirement
was not included by the legislature.
Rather, the respondents, Everett's heirs, contend the District
Court properly followed the Colorado Supreme Court's reasoning in
a nearly identical situation to the case at hand. In re Estate of
Lopata (Cola. 1982), 641 P.2d 952. We agree that Lovata represents
the better interpretation of the language in § 72-z-102, MCA
(1979). Three days before their wedding, a 57-year old woman and
a man 10 years her senior, both with children from prior marriages,
executed a prenuptial agreement which included a recital of full
8
disclosure and wherein each renounced any interest in the estate of
the other. Similar to the facts surrounding Eleanor and Everett's
agreement, the husband's attorney drafted the agreement and the
wife was not advised by him nor represented by independent counsel.
Other than the disclosure recital, there was no evidence that
either party disclosed all of his or her assets to the other. The
husband's estate exceeded $1 million--approximately 40 times the
net value of his wife's estate. Nevertheless, the Colorado Supreme
Court upheld the district court's finding that the evidence failed
by any standard to establish fraud, concealment, material
misrepresentation, or undue influence by the husband at the time
the prenuptial contract was entered into. Looata, 641 P.2d at 956.
Under the facts of that case, the court concluded, though the
disclosure of the husband's assets to his wife was general, it was
entirely fair.
The District Court acknowledged that a number of other states
take a fairly stringent view concerning the extent of disclosure
required to constitute fair disclosure. The court stated the best
procedure would obviously be to insert in the prenuptial agreement
the disclosure of assets and values between the parties. However,
the court believed the Colorado Supreme Court enunciated the better
view of fair disclosure when it stated the following:
Fair disclosure contemplates that each spouse should be
given information, of a general and approximate nature,
concerning the net worth of the other. Each party has a
duty to consider and evaluate the information received
before signing an agreement since they are not assumed to
have lost their judgmental faculties because of their
pending marriage.
9
LoData, 641 P.2d at 955.
The District Court noted, since Everett was deceased, Eleanor
was the only witness available who could testify to the actual
discussions between she and Everett concerning their assets. The
court, as the trier of fact, found Eleanor's testimony involving
Everett's disclosure and her general knowledge of Everett's worth
not particularly credible. "The credibility of witnesses and the
weight to be assigned to their testimony are to be determined by
the trier of fact, and disputed question of fact and credibility
will not be disturbed on appeal [citation omitted]." State v.
Moreno (19901, 241 Mont. 359, 361, 787 P.2d 334, 336.
In considering what Eleanor claimed she knew, what was placed
in evidence by her own witness, and the recitation in the
prenuptial agreement that the parties had made a full disclosure of
their assets, the District Court found "Eleanor at least in general
terms knew that Everett had a residence, two cars, the personal
belongings in the residence and some retirement or savings account
through his employer Piper, Jaffray & Hopwood." The District Court
concluded "there was at least a general disclosure of the assets
and income capacity of Everett prior to marriage which would
constitute a 'fair disclosure' under Section 72-2-10[2], MCA." We
also note Eleanor acknowledged in the written agreement that "the
nature and extent of the holdings of each party [were] fully
disclosed to the other."
Whether there was fair disclosure of Everett's assets prior to
the parties' execution of the prenuptial agreement was a factual
10
determination to be made by the District Court. We review a
district court's finding of fact to determine if the findings are
clearly erroneous. Columbia Grain International v. Cereck (I993),
258 Mont. 414, 417, 852 P.2d 676, 678. To make a clearly erroneous
determination, we apply the three-part test adopted in Interstate
Production Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 322-23,
820 P.2d 1285, 1287.
First, the Court will review the record to see if the
findings are supported by substantial evidence. Second,
if the findings are supported by substantial evidence we
will determine if the trial court has misapprehended the
effect of evidence. [Citations omitted] Third, if
substantial evidence exists and the effect of the
evidence as not been misapprehended, the Court may still
find that I [Al finding is "clearly erroneous" when,
although there is evidence to support it, a review of the
record leaves the court with the definite and firm
conviction that a mistake has been committed." U.S. v.
U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92
L.Wd. 746.
We have reviewed the record and, in light of the District
Court's determination that Eleanor lacked credibility, we conclude
substantial evidence exists to support the District Court's finding
of general disclosure on the part of Everett to Eleanor. We
further conclude this evidence has not been misapprehended nor has
a mistake been committed.
Although, here, disclosure was not detailed, we agree with the
District Court's conclusion that the requirements of 5 72-2-102,
MCA (1979)--in particular, fair disclosure--were complied with
under the facts of this case. In making this determination, the
District Court properly relied on Looata, 641 P.2d at 955-56, which
was directly on point both factually and legally
11
As the Dissent points out, and as we also point out above,
this case could have easily been avoided if the parties had
included a list of their assets and values in the agreement. The
fact is, however, they did not and there is nothing in § 72-2-102,
MCA, that requires a list--a point that the Dissent fails to
acknowledge. With no support in the record, save Eleanor's self-
serving testimony which the trial judge found not credible, the
Dissent presumes that Everett did not fairly disclose his assets
and values to her and, apparently, in some unexplained way took
advantage of her lack of business acumen. There is simply no basis
for such a presumption. Eleanor signed an agreement in which she,
in writing, acknowledged that there had been full disclosure.
While she now claims she knew at the time that there was not full
disclosure, she nevertheless also admits that she did not speak up
when Everett stated to Mr. Gunderson that there had been full
disclosure. She voluntarily signed the agreement that was
presented to her. There is nothing in the record that indicates
Eleanor was forced to sign the agreement, that she requested more
time to consider and study the agreement or that she was precluded
from retaining her own counsel to review the agreement and advise
her of the consequences of signing it. She admits that she learned
of the nature of what she had given up under the agreement while
Everett was still alive, yet she took no legal action to set the
agreement aside or challenge it, until after Everett's death.
There is nothing in the record that indicates that, assuming
arguendo, there was not fair disclosure, that Eleanor tried to get
more information about Everett's estate or that she even inquired
12
further of him in that regard before signing the agreement.
In short, while criticizing the result of our opinion as
creating a duty between potential spouses to question each other
about their assets (the very duty that § 72-2-102, MCA, seems to
contemplate), the Dissent's position ignores the statute and,
rather, attempts to justify Eleanor for failing to demand fair
disclosure when, according to her, she knew it had not been made;
for knowingly concurring with the misrepresentation of fair
disclosure in the written agreement; and, finally, for attempting
to take advantage of her own misconduct at a time when Everett is
no longer alive to defend himself or his estate. That approach is
not supportable on the facts here, as a matter of law or in basic
fairness.
Finally, Eleanor argues the applicability of the Uniform
Prenuptial Agreement Act adopted by Montana in 1987. We note the
act was not in force at the time this prenuptial agreement was
entered into, and Eleanor has not cited us to any authority that
would require us to apply the act. Without deciding whether or not
the act does apply, based upon the facts of this case and the
District Court's findings, its application would not change the
result here in any event.
We hold the District Court did not err in determining the
prenuptial agreement between Eleanor and Everett was valid, thus,
precluding Eleanor from collecting her elective share of Everett's
estate. We affirm.
13
we Concur:
Justices
14
Justice W. William Leaphart, dissenting
I dissent from the majority opinion which, with no evidence
that there was actually a disclosure of assets, finds "fair
disclosure." With this decision, Montana takes a step beyond other
jurisdictions in upholding a prenuptial agreement based on a mere
recitation of disclosure. This case has none of the circumstances
and background that have led other courts to find "general
disclosure" based on a recitation of disclosure satisfactory. In
so deciding, we establish a policy of inquiry rather than
disclosure--we create a duty to question future spouses about their
assets and forthrightness, rather than imposing a duty to openly
and honestly disclose information to a future spouse.
The dispute in this case could easily have been avoided if the
parties had included a list of their assets and values in the
prenuptial agreement. However, Eleanor and Everett's prenuptial
agreement contains only a recital of disclosure with no attached
list of assets or values. Even though Eleanor had only dated
Everett for six months, the District Court concluded that she must
have known that he owned his house and had a substantial retirement
fund. Based upon these unfounded assumptions, the court concludes
that a bare recitation of disclosure constitutes "fair disclosure"
under § 72-z-102, MCA. However, in reviewing the facts of the
case, there is nothing to support the District Court's finding that
Eleanor had a general knowledge of Everett's assets.
Eleanor testified that Everett did not disclose his assets to
her before signing the prenuptial agreement. The agreement was
15
prepared by Everett's attorney Mr. Gunderson. Mr. Gunderson
testified that at the fifteen minute meeting to discuss and sign
the prenuptial agreement, neither he nor Everett disclosed
Everett's assets with Eleanor. Eleanor was not represented by
counsel, nor had she seen or read the agreement before the meeting.
Eleanor testified that the rights she waived in the prenuptial
agreement were not explained to her by Gunderson or Everett.
Understandably, she did not comprehend the rights she waived as
neither the elective share nor allowances are easily or commonly
understood principles. Eleanor had known Everett only six months
before she signed the prenuptial agreement the day before she and
Everett were married. There is no indication that Eleanor had any
independent source of information regarding Everett's assets.
Eleanor had no independent knowledge of Everett's employment or the
intricacies of his employer's retirement plans.
Eleanor's education and experience did not provide her with a
background in business and investment affairs. She did not
complete high school. She has never made more than $5,000 a year.
Her employment history as a realtor did not justify the District
court 1s assumption that she must have known about Everett's
retirement fund. Even if, as the District Court assumed, she knew
that Everett owned his home and had a retirement fund, there is no
way she could have had any idea of their values without some
disclosure by Everett. The house could have been heavily mortgaged
and his retirement fund could have been worth anywhere from a few
thousand to several hundred thousand dollars.
16
Based on these facts, the District Court's conclusion that
"there was at least a general disclosure of the assets and income
capacity of Everett prior to marriage which would constitute a
'fair disclosure' under Section 72-Z-103 MCA," is not supported by
substantial evidence. The District Court, in finding it
"inconceivable" that Eleanor did not know that Everett owned his
home and that she must have, or should have known, that as a
stockbroker for several decades Everett would have a retirement
fund, imposes on Eleanor a level of knowledge that is not supported
by the evidence, her background or education. In agreeing with
this assumption, this Court imposes a requirement that everyone on
the threshold of signing a prenuptial agreement have a thorough
understanding of professional upper middle class financial
planning. In this world of economic and cultural diversity, this
is an unreasonable imposition.
The Court errs in affirming that there was a general
disclosure of assets, when it is clear from the record there was no
disclosure, general or otherwise. Rather, the record reveals
nothing more than an unfulfilled recital of disclosure and the
District Court's unreasonable assumption that Eleanor should have
known as a matter of general knowledge, that Everett had a
retirement fund of unknown value.
1n Schumacher v. Schumacher (Wis. 1986), 388 N.W.2d 912, 915,
the Wisconsin Supreme Court pointed out that, when the parties to
a prenuptial agreement do not fairly and reasonably disclose their
actual assets to one another, independent knowledge of one
17
another's financial status may substitute for fair and reasonable
disclosure. Nonetheless, such independent knowledge must be more
than a general knowledge of the other's assets and their value. As
an illustration, the court stated that if one party surmises that
the other has a pension, that conjecture is not the equivalent of
knowing that the other party has both a pension and an annuity plan
with a total value in excess of $60,000. Only actual knowledge of
these facts, the court emphasized, will suffice.
Montana is now alone in holding that the test of "fair
disclosure" can be satisfied with a mere recitation of disclosure
in the absence of any financial information from independent
sources or other mitigating circumstances. Most courts agree, the
disclosure of assets necessary to validate a prenuptial agreement
can be general and need not be an exact detailed disclosure.
However, disclosure does need to approximate the parties' net worth
so that they can make an intelligent decision regarding the
agreement. See, e.q. Nanini v. Nanini (Ariz. Ct. App. 1990), 802
P.2d 438; Friedlander v. Friedlander (Wash. 1972), 494 P.2d 208;
Laird v. Laird (Wyo. 1979), 597 P.2d 463. In fact, the case relied
on by this Court, the District Court, and Everett's children, In re
Estate of Lopata (Cola. 1982), 641 P.2d 952, 955, states: "Fair
disclosure contemplates that each spouse should be given
information, of a general and approximate nature, concerning the
net worth of the other." Yet in the instant case, there is no
indication that Everett provided any financial information to
Eleanor. Rather, the Court has required her to glean this
18
information through her intuition or perhaps through osmosis.
Generally speaking, a written disclosure will be the more reliable
method.
In Lopata, the court looked at the education, background, and
business experience of Mrs. Lopata and found that she was "well
versed in day-to-day business affairs and was accustomed to
consulting professionals in matters of law, tax, and accounting."
641 P.2d at 954. Mrs. Lopata had one year of college education,
had operated a retail business, participated in an investment club,
had her income tax returns professionally prepared, and she had
been the administrator of her first husband's estate. Lopata, 641
P.2d at 954. The court also recognized that adequate provision for
her support had been made by the prenuptial agreement and weighed
the fairness of that provision in upholding the prenuptial
agreement. These circumstances are not present in the instant
case. Eleanor's background is not comparable to Mrs. Lopata's and
if the prenuptial agreement stands, Eleanor gets no support at all
from Everett's estate.
In Lopata, the wife's testimony regarding disclosure was
barred under Colorado's dead man statute. Lopata, 641 P.2d at 956.
Although Montana does not have a dead man statute, the District
court, nonetheless, found that Eleanor's testimony was not
particularly credible because she was the only witness still alive.
The irony, of course, is that if there were a written disclosure,
the parties and the court would not be put in the position of
presenting or relying upon self serving testimony. Under this
19
Court's holding herein, such disputes will necessarily be resolved
through after the fact credibility battles rather than
contemporaneous documentation. As it is, Eleanor testified that
there was no disclosure and her testimony rebuts any presumption
that adheres to the agreement's bare recitation of disclosure.
The District Court faults Eleanor for conceding in an earlier
dissolution proceeding, that the prenuptial agreement was
"straightforward and simple." This Court also finds this
concession persuasive in holding that the agreement was not
ambiguous. I agree that there was no ambiguity in what the
agreement did provide. As Eleanor's attorney admitted, the
agreement straightforwardly applied in the event of death, not
dissolution. The problem presented here, however, pertains not to
what the agreement says, but rather, what it does not say. It does
not say what assets and values are being disclosed.
In sum, our decision applies none of the criteria other courts
have considered in determining whether the spouse knew or should
have known of the other's assets, 1.e.: a previous business
relationship (In re Marriage of Knoll (Or. Ct. App. 1983), 671 P.2d
718; Pajak v. Pajak (W. Va. 1989), 385 S.E.2d 384); evidence of
oral disclosure (In re Estate of Hill (Neb. 1983), 335 N.W.2d 750;
In re Estate of Hartman (Pa. Super. Ct. 1990), 582 A.2d 648);
knowing the person for more than two years before signing an
agreement (In re Estate of Stever (Cola. 1964), 332 P.2d 286; In re
Parish's Estate (Iowa 1945), 20 N.W.Zd 32; In re Neis' Estate (Kan.
1950), 225 P.2d 110; Laird, 597 P.2d 463); or living near each
20
other (In re Estate of Broadie (Kan. 1972), 493 P.2d 289; In re
Estate of Youngblood (MO. 19701, 457 S.W.2d 750). Instead, this
Court does as no other court has chosen to do. It assumes that a
person of limited financial expertise who has known the other party
for a mere six months, who has no background in estate matters, is
unrepresented by counsel and who has fifteen minutes to read and
question the premarital agreement before signing it the day before
the wedding, has sufficient knowledge and information to satisfy
the requirements of "fair disclosure."
As we and the District Court recognize, the issue presented by
this case could have been easily solved by including a list of
assets and their values in the prenuptial agreement. Such a list
ensures disclosure and eliminates the sort of testimony presently
confronting us. Without a written list, we must weigh testimony
which recalls events from 1981, is self-serving, and only arises
upon the death of one of the parties insuring the absence of the
deceased party's testimony. Clearly the preferable policy is to
encourage the benedicts of the world to actually disclose their
assets and thereby avoid unseemly postmortem battles as to what was
or was not disclosed on the threshold of marriage. This Court,
however, sends the clear message that an intended spouse, when
asked "Have you disclosed all of your finances and assets?" can
keep his fingers crossed while responding in the affirmative.
The Court's holding opens the door to hiding assets from a
future spouse. Instead of requiring actual and voluntary
disclosure, this holding will require that prospective spouses
21
investigate and inquire as to their future spouse's financial
affairs and holdings. In many instances, the less affluent spouse
will not have the sophistication or know-how to make the
appropriate inquiries. He/she will thus be left at the mercy of
the other spouse's paying lip service to "fair disclosure" 5 72-2-
102, MCA, a legal requirement which we have effectively reduced to
voluntary compliance.
Justice / I
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