2012-368, In re Estate of Richard B. Wilber

The petitioner, Estate of Richard Wilber (Richard’s Estate),

Serge on the brief, and Mr. Hatfield orally), for the petitioner. Upton & Hatfield, LLP, of Concord (Douglas S. Hatfield and Matthew R. to press. Errors may be reported by E-mail at the following address: Alexander on the brief, and Mr. Alexander orally), for the respondent.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as before they separate.” Williams, Postnuptial Agreements, 2007 Wis. L. Rev. p. 2 unlike an antenuptial agreement, “is entered into after a couple weds but determines a couple’s rights and obligations upon divorce” or death, but, As the name suggests, a postnuptial agreement “is an agreement that

unenforceable.

committed no error in finding the agreement fundamentally unfair and, thus,

this court should not do so absent legislative enactment; and (2) the trial court New Hampshire has not recognized the validity of postnuptial agreements and Property Agreement. Josephine’s Estate, on the other hand, argues that: (1) Richard’s Estate argues that the trial court erred in failing to enforce the

valid and enforceable postnuptial agreement.” This appeal followed.

Property and that the Agreement did not satisfy “the necessary criteria to be a disagreed on both grounds, ruling that it had ancillary jurisdiction over the claims on the Property during her life or after death. The probate division

right to pursue a statutory share by promising in the Agreement to make no

his estate, and had been denied for untimeliness; and (2) Josephine waived her

Orphans’ Court for Prince George’s County, Maryland for a statutory share of several grounds, among them: (1) Josephine had already petitioned the Rosemary Heyne, to pursue her claim. Richard’s Estate opposed the waiver on

estate. Josephine died on March 12, 2011, leaving the executor of her estate,

spouse to waive the decedent spouse’s will and take a specified portion of the disagree, but rather cites New Hampshire precedents to support its position statutory share of the Property under RSA 560:10, which allows a surviving Josephine filed a waiver by surviving spouse in the probate division, seeking a

would have enforced the Agreement. Richard’s Estate does not explicitly distribute property he owned in New Hampshire. In December 2010,

recognizes postnuptial agreements, it is “[d]oubtful” that Maryland courts Josephine’s Estate contends, at the outset, that although Maryland ancillary administration in the 9th Circuit – Nashua Probate Division to will. The executor of Richard’s estate in Maryland, his state of domicile, filed 827, 828 (2007). Richard died testate on October 18, 2010, omitting Josephine from his

“after [her] death.” claims on Richard’s New Hampshire property (the Property) during her life or his life or “after [his] death,” and Josephine, in return, agreed not to make any

Richard also agreed not to make any claims on the Maryland property during on the property until his death or until he no longer wished to live there. p. 3 3

establish their rights and obligations upon death or marital dissolution, given

See, e.g., In re Marriage of Traster, 291 P. p. 3 3d 494, 501, 512 (Kan. Ct. App.

financial affairs.” Bedrick, 17 A. p. 3 3d at 24 (quotation omitted); accord, e.g., In re incidence of divorce” and “allow two mature adults to handle their own consistent with public policy” because they “realistically acknowledge the high

agreements give married persons the flexibility to dispose of their property and We find no compelling reason to depart from this trend. Postnuptial postnuptial agreements, even in the absence of express legislative approval. is enforceable, rendering widow’s right of election void). In recent years, courts have generally recognized and enforced formation and are otherwise fair. See id.; Williams, supra at 8 p. 3 38-39. As early Bulova’s Will, 220 N.Y.S.2d 541, 548 (App. Div. 1961) (postnuptial agreement

rights.” Hill, 74 N.H. at 290. Although, as in Foote, the court in Hill did not Connecticut Supreme Court opined that “[p]ostnuptial agreements are upheld as long as they did not “contemplate a renunciation of marital . . . example is Bedrick v. Bedrick, 17 A. p. 3 3d 17 (Conn. 2011), a case in which the by our statutes, cf. RSA 460:2-a (2004) (recognizing antenuptial agreements), Marriage of Friedman, 122 Cal. Rptr. 2d 412, 418 (Ct. App. 2002). One recent 2012); Ansin v. Craven-Ansin, 929 N.E.2d 955, 961, 969 (Mass. 2010); In re Postnuptial agreements are neither prohibited nor specifically authorized

relationships, and courts will uphold them if they satisfy the criteria of contract analysis in Hill essentially assumed that they could do so. See id. at 290-91. themselves touching their respective rights in each other’s property,” id., the wife could not contract with one another. See Adams v. Adams, 80 N.H. 80, 86 expressly consider whether spouses “can make a valid agreement between Hampshire to decide that question. See Centronics, Corp. v. Genicom Corp., Estate’s claim to a statutory share, we will apply the common law of New

288 (1907), we suggested that contracts between a husband and wife may be rights may be valid.” Foote, 70 N.H. at 518. Similarly, in Hill v. Hill, 74 N.H. renouncing marital rights is void,” but that “[a]n agreement touching property our own.”). to give effect to postnuptial agreements when we stated that “[a]n agreement whatever extent the governing foreign law has not been proven it is identical to as 1900, in Foote v. Nickerson, 70 N.H. 496 (1900), we signaled our willingness substantive law differs between the two jurisdictions, we will assume that to

(1921). The modern view is that spouses may freely enter contractual

and legislatures long ago abandoned the common law rule that a husband and and we have had no occasion to address them under our common law. Courts apply Maryland law to determine whether the Agreement bars Josephine’s that the Agreement should be enforced. Because neither party has asked us to

our own, . . . and since neither party has suggested that the relevant 1 p. 3 32 N.H. 133, 139 (1989) (“Since the New York decisions are not at odds with law.” In re Angel N., 141 N.H. 158, 161 (1996) (quotation and brackets

p. 4 unless it is unsupported by the evidence or plainly erroneous as a matter of A:4 (2007). “Consequently, we will not disturb the probate court’s decree plainly erroneous that such findings could not be reasonably made.” RSA 567-

statute: “The findings of fact of the judge of probate are final unless they are so Our standard in review of a probate court decision is determined by

fair behavior required of spouses when they contract with one another.”

finding that [Richard’s] conduct fell short of the scrupulously transparent and

counsel.” Josephine’s Estate contends that the trial court “was justified in

there was no indication that Mrs. Wilber was provided with or offered legal financial disclosure document or any indication that one was provided, and the Agreement lacked “fundamental fairness in that there is no accompanying

remedy to which one asserts a right.” Black’s Law Dictionary 281-82 (9th ed.

substantively fair to both parties.” The trial court disagreed, concluding that 4

antenuptial contracts, while others analyze both antenuptial and postnuptial

assertion of an existing right; . . . [a] demand for money, property, or a legal

that the Agreement is enforceable because it “was both procedurally and Turning now to the central issue in this case, Richard’s Estate argues

an existing right.” contracts. Some require greater indicia of fairness than that which applies to Other state courts take different approaches to reviewing postnuptial

omitted). while I am living or after my death.” A “claim” is defined broadly: “The

pursuant to RSA 560:10 falls squarely within this definition as the “assertion of

the Agreement states: “I . . . agree not to make any claims on [the Property] Property for the purpose of the Agreement. We disagree. The relevant clause of statutory share under RSA 560:10 does not constitute a “claim” on the

2009). Josephine’s Estate’s attempt to take an interest in the Property

override the mutual, agreed-upon will of consenting adults. See Bratton v.

the outset, we note that Josephine’s Estate contends that its attempt to take a We must now determine whether to enforce the agreement at issue. At or death are designed to ensure a fair outcome in often delicate situations, see, their particular life circumstances. While the default rules applying to divorce B

postnuptial agreements may be enforced in New Hampshire. claims to each other’s property in the event of death”). We hold, therefore, that upholding post-nuptial agreements in which the parties mutually release Bratton, 136 S.W.3d 595, 604 n.2 (Tenn. 2004) (noting the “many cases

property is equitable), there is no reason why they should, in every case, e.g., RSA 458:16-a (2004) (presumption that equal distribution of marital there is no financial disclosure document accompanying the Agreement does

p. 5 or duress. See Yannalfo, 147 N.H. at 599. The only evidence touching upon

the Agreement be drawn up and dictated its terms. Moreover, the fact that

under either standard. No evidence was introduced suggesting fraud, mistake,

Robert Wilber, Richard’s son, that Josephine – not Richard – both requested

unenforceable.” Yannalfo, 147 N.H. at 599; see MacFarlane, 132 N.H. at 614. have so changed since the agreement was executed as to make the agreement meet its burden to demonstrate that the Agreement was unfair to Josephine because Josephine’s Estate, as the party challenging the Agreement, failed to to scrutiny beyond that which applies to antenuptial contracts. That is Here, we need not decide whether postnuptial contracts must be subject

bearing on the terms and execution of the proposed agreement, with fairness courts scrutinize them more closely than ordinary commercial contracts. In re the circumstances surrounding the Agreement’s formation was the testimony of

fact; (2) the agreement is unconscionable; or (3) the facts and circumstances

Ordinary principles of contract law govern antenuptial agreements. See (quotation omitted). being the ultimate measure.” In re Estate of Hollett, 150 N.H. at 42-43 We look to principles governing antenuptial agreements for guidance.

exercise the highest degree of good faith, candor and sincerity in all matters State has a special interest in the subject matter of antenuptial agreements, Because of the fiduciary nature of the marital relationship, “the parties must

duress or mistake, or through misrepresentation or nondisclosure of a material agreement must prove that: “(1) the agreement was obtained through fraud, N.H. 608, 614 (1989). As a result, the party seeking invalidation of the Yannalfo, 147 N.H. 597, 599 (2002); see MacFarlane v. Rich (MacFarlane), 132 “carries with it a presumption of validity.” In the Matter of Yannalfo and Estate of Hollett, 150 N.H. 39, 42 (2003). That said, an antenuptial contract although the circumstances may slightly differ.”).

husband and wife executing an antenuptial agreement . . . .”). Because the fiduciary relationship is generally deemed to exist between a prospective See 41 C.J.S. Husband and Wife § 121, at 492 (2006) (“A confidential or another, and, therefore, often do not enter into agreements from arm’s length. contract, however, spouses are traditionally regarded as fiduciaries of one Norberg v. Norberg, 135 N.H. 620, 623 (1992). Unlike parties to a commercial contracts under the same standard. Compare, e.g., Ansin, 929 N.E.2d at 962

to antenuptial agreements are equally applicable to postnuptial agreements, Stoner v. Stoner, 819 A.2d 529, 533 n.5 (Pa. 2003) (“[T]he principles applicable requirements for postnuptial contracts than for antenuptial contracts), with and Minn. Stat. Ann. § 519.11 (West 2006) (imposing more stringent example, that parties to the former are “free not to marry” (quotation omitted)), postnuptial agreements “are not the same in all respects” and noting, as an n.8, 969 n.19 (concluding that principles applicable to antenuptial and accepted title. Cf. Keshishian v. CMC Radiologists, 142 N.H. 168, 173 (1997)

p. 6 promise to convey title to the Maryland property to Josephine and that she

divorce him. Josephine’s Estate concedes, however, both that Richard kept his

demanded that she promise not to require him to make repairs on it and not to upon transferring the deed to the Maryland property to Josephine, Richard claims against the Property. This argument appears to rest on the fact that,

additional consideration,” thus releasing her from her obligation to make no

Reversed and remanded.

bills. See Button v. Button, 388 N.W.2d 546, 550 (Wis. 1986) (noting that remand for further proceedings consistent with this opinion. years and, at least for some time in the later years of the marriage, paid their In light of the foregoing, we reverse the ruling of the trial court and 6 Indeed, as noted above, she was married to Richard for approximately fifty “[b]y refusing to perform his obligations under the Property Agreement without Josephine remained obligated to perform her end of the bargain. Josephine’s Estate also contends that Richard breached the Agreement

that the trial court’s decision to the contrary is unsupported by the evidence.

Hampshire property in exchange for obtaining title to the Maryland property. time.” (quotation and brackets omitted)). Having accepted his performance,

its burden to show the agreement is unenforceable. We conclude, therefore, respective rights under the Agreement. Thus, Josephine’s Estate failed to meet DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred. unconscionable because of some gross inequality in the value of their

understand the financial implications of giving up her rights in the New (“[A] party cannot treat a contract as binding and as rescinded at the same Furthermore, nothing in the record indicates that Josephine did not

contract”).

“substitute for disclosure”). Nor is there any evidence that the exchange was

paternalistic and unwarranted interference with the parties’ freedom to

“independent knowledge of the opposing spouse’s financial status” may be a Ansin, 929 N.E.2d at 963 n.9, Josephine and Richard were free to form a

that the agreement was “obtained through” such nondisclosure. Id. Nor does not suffice to show either that a “material” fact was withheld from Josephine or

requirement of consultation with independent legal counsel “would be a contract without doing so. See Stoner, 819 A.2d at 532 (noting that per se

“go[ne] a long way toward ensuring the enforceability of [the] agreement,” invalidate the Agreement. Although hiring independent counsel would have the fact that Josephine was not provided with or offered legal counsel