(dissenting).
I respectfully dissent. Because Antone suffered “some damage” at the time of the marriage, and not at the time of the dissolution 12 years later, I would affirm the district court’s grant of summary judgment dismissing Antone’s stale malpractice claim.
Before their wedding, Antone and his former spouse sought legal advice regarding an antenuptial agreement. The first draft of the agreement included provisions on property division that protected Antone’s non-marital property from any claims made by his former spouse. When Antone’s former spouse refused to sign the agreement, the property-division portion was deleted and a spousal maintenance provision was inserted. Antone alleges that Mirviss did not draft the antenuptial agreement in accordance with his wish to protect his non-marital property from the reach of his former spouse. But Antone had notice at the time of the marriage that his non-marital property was deleted from the agreement and, therefore, was unprotected. His non-marital property thus became a part of the marital estate and was subject to the marital claims of his former spouse.
I agree with the majority that, in the context of when the statute of limitations accrues, “some damage” occurs when a legal malpractice claim can survive a motion to dismiss for failure to state a claim upon which relief can be granted. But I do not agree with the majority that “some damage” must be in the form of ascertainable money damages for the statute of limitations to accrue. See generally Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (“[T]he running of the statute does not depend on the ability to ascertain the exact amount of damages”) (emphasis added); cf. Olson v. Aretz, 346 N.W.2d 178, 183 (Minn.App.1984) (“Uncertainty as to the fact of whether any damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not.”) (quotation omitted), review denied (Minn. Oct. 30, 1984).
The Herrmann Court concluded that the statute of limitations accrues upon the occurrence of the “first prohibited transaction.” Herrmann, 590 N.W.2d at 643-44. Upon marriage, the antenuptial agreement becomes operative to resolve issues of property division and spousal maintenance if the marriage is dissolved. Marriage is, therefore, the defining event and is akin to a “first prohibited transaction,” as enunciated in Hermann. At the time of his marriage Antone lost the legal right to claim ownership in his non-marital assets unfettered by his former spouse’s inchoate interests. See generally Minn.Stat. § 507.02 (1986) (requiring spouse to obtain signature of other spouse to convey marital property); Minn.Stat. § 519.07 (1986) *573(detailing procedures to extinguish spouse’s inchoate interest in marital property only if spouse is insane or if the other spouse has been deserted or is otherwise entitled to a divorce). Antone’s loss of an exclusive interest in his assets was a damage that proximately flowed from the tort of malpractice even if the exact amount was unascertainable at the time of the marriage.
The majority opinion has two troubling implications. First, parties desiring an antenuptial agreement will encounter practitioners reluctant to draft such agreements because they will be held liable for legal advice long after the alleged malpractice has occurred. Second, because “some damage” does not occur until marital property is divided in a dissolution proceeding, the majority opinion creates an open-ended extension of time for a legal malpractice claim. This result is contrary to the general intent of statutes of limitation, which is to bar stale claims and to provide certainty to professional affairs, not to hold practitioners potentially liable for malpractice for many years after the tort allegedly occurred and to a standard of care that has long ago been forgotten.
I would affirm the district court’s grant of summary judgment and conclude that Antone’s legal malpractice lawsuit falls outside of the six-year statute of limitations.