In Re Estate of Geyer , 516 Pa. 492 ( 1987 )

McDermott,¹ justice.

The controversy in this appeal centers on whether an antenuptial agreement between the appellant, Rosalie Geyer, nee Werner, and her deceased husband, George W. Geyer, precludes her from exercising her statutory right to take against his will.²

The appellant and the decedent met in October, 1976. Each had been twice married and widowed. A whirlwind romance ensued. Mr. Geyer soon expressed his interest in marriage, but the appellant was reluctant to marry a third time. Nevertheless she eventually consented to the union and the couple married on January 9, 1977.

In January of 1977, George Geyer was 68 years old. He had one adult son residing in California, five grandchildren, and six great grandchildren. By all accounts Mr. Geyer was an astute businessman who successfully operated and expanded the family enterprises. His net estate at the time of his marriage to Rosalie Werner was approximately 594,-000 dollars. A substantial portion of this wealth was composed of the family business, but the decedent also had extensive real estate holdings.³ He was established in the community and enjoyed a comfortable lifestyle.

Rosalie Werner, 56 at the time of her third marriage, had three adult children from her first marriage. Her second husband died in March, 1976. After selling their marital home in Illinois she moved to Pennsylvania in order to be nearer her sister. Thus when she met George Geyer in October, 1976, she was relatively new to the locale, having resided there only since the previous August. Though she possessed no substantial business experience the appellant realized a modest income from her skills as a pianist.⁴ Additionally, she received a Navy pension as a result of her second husband’s military service.⁵ Rosalie Werner’s net estate was worth approximately 39,000 dollars in January of 1977.

From these respective positions the parties entered the antenuptial agreement here at issue. That agreement provided:

ANTE-NUPTIAL AGREEMENT

MADE this 30th day of December, in the year nineteen hundred and seventy-si» (1976):

BETWEEN George W. Geyer, of the Borough of Chambersburg, Franklin County, Pennsylvania, FIRST PARTY,

AND

ROSALIE WERNER, of Greene Township, Franklin County, Pennsylvania, SECOND PARTY.

WHEREAS, the said parties contemplate entering into marital relations with each other and each of the parties has been previously married;

WHEREAS, the first party is possessed of real and personal property, and the ownership and operation of Geyer Lumber & Millwork Co., Inc., the fuel oil business, and Geyer’s Kraft Korner, Inc.;

WHEREAS, the first party has a son, George W. Geyer, III, five grandchildren, and six great grandchildren;

WHEREAS, the second party’s heirs are three children and_grandchildren; and

AND WHEREAS, the parties hereto, both having full knowledge and understanding of the other party’s financial worth and financial position, agree with the other that their existing legal rights or the existing legal rights of their children and heirs shall not be affected by the proposed marriage as herein stated:

NOW, THEREFORE, it is mutually agreed as follows:

1. That the first party shall, during the continuance of his marriage with the second party, provide a home for the second party and shall use his income to provide reasonable support, maintenance and medical expenses for the second party, and upon the death of the first party if the second party survives him, then the first will either devise or convey to the second party the residence property, free and clear of all encumbrances, including the household furniture and furnishings less certain items which will be designated for his child or grandchildren.

2. That upon the death of the first party, the second party surviving him and living with him at the said time as his wife, shall be awarded, given or bequeathed a sum of Twenty Thousand ($20,000.00) Dollars to provide a substantial contribution to her way of living.

3. That the first party agrees with the second party and the second party agrees with the first party that in consideration of the two previous provisions by the first party, the second party will not make any claim to or file an election to any other portion of the first party’s estate.

4. That the first party, in consideration of these agreements, understands and agrees that the second party may dispose of her estate in any way she wishes to do so, either by gift, devise or by will.

5. That it is expressly agreed that by virtue of the said marriage, neither party hereto shall have or acquire any right, title or claim in or to the real or personal estate of the other, except as herein provided, and the estate of each shall descend to and vest in his or her heirs-at-law, legatees or devisees as may be prescribed by his or her last will and testament.

6. That it is expressly agreed that if either party shall mortgage, sell or convey his or her real estate, the other party hereto shall upon request join in any and every mortgage, deed, or other instrument that may be necessary for the eventual transfer of the same.

7. That this agreement is entered into by each party with full knowledge on the part of each of the extent and probable value of all of the property, or estate, of the other, and of all the rights, that but for this agreement, would be conferred by law upon each of them in the property, or estate, of the other, by virtue of the consummation of the said proposed marriage; and it is the express intention and desire of the parties hereto that their respective rights in and to each other’s property, or estate, of whatsoever character the same may be, shall be determined and fixed by this agreement, and not otherwise.

8. That this agreement shall bind the parties hereto, their heirs, executors and assigns.

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals, the day and year first above written.

WITNESS:__⁶

/s/George W. Geyer (SEAL)

George W. Geyer

FIRST PARTY /s/Rosalie Werner (SEAL)

Rosalie Werner

SECOND PARTY

The decedent passed away on May 1, 1982, some five years after his marriage to the appellant. A will dated July 13,; 1981, was offered for probate, the provisions of which are set forth below.

I, George W. Geyer, of the Borough of Chambersburg, Franklin County, Pennsylvania, being of sound mind, memory and understanding do make, publish and declare this as and for my last will and testament, hereby specifically revoking any prior will made by me.

FIRST. I direct that all my just debts and funeral expenses be paid as soon as practicable after my death. I direct that all estate and inheritance taxes shall be paid by my Executor out of my estate.

SECOND. I give, devise and bequeath my home residence at 542 Guilford Avenue, Chambersburg, Pennsylvania, and the sum of Twenty Thousand ($20,000.00) Dollars, to my wife, Rosalie S. Geyer in accordance with the terms of our anti-nuptial [sic] agreement dated December 30, 1976.

THIRD. I give, devise and bequeath all of the rest, residue and remainder of my estate, whatsoever and wheresoever situate, to my son, George W. Geyer, III, absolutely, if he is living at the time of my death.

FOURTH. If my son, George W. Geyer, III, is not living at the time of my death, then I give, devise and bequeath all of the rest, residue and remainder of my estate, whatsoever and wheresoever situate, to the children of my son, George W. Geyer, III, in equal shares.

FIFTH. If any person inherits an interest in my estate before reaching the age of twenty-one (21) years, then for such person’s estate I appoint Farmers and Merchants Trust Company of Chambersburg, Chambersburg, Pennsylvania, as guardian. The guardian shall pay the net income and as much of the principal as in its sole judgment is reasonable and necessary for the proper maintenance and support of any minor child, as an addition to its parental support, and the guardian shall have wide discretionary powers as to investments.

SIXTH. I also authorize my Executor herein named to operate my business until such time as it can be liquidated or disposed of.

SEVENTH. I nominate, constitute and appoint my son, George W. Geyer, III, as Executor of this my last will and testament, without bond, but if he should predecease me or fail to qualify, I then nominate, constitute and appoint Farmers and Merchants Trust Company of Chambersburg, Chambersburg, Pennsylvania, as Executor in his place.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 13th day of July, A.D., 1981. /s/George W. Geyer (Seal)

George W. Geyer

This document was self-proving.

As the surviving spouse Mrs. Geyer elected to take her statutory share of her late husband’s estate. 20 Pa.C.S. § 2203. The executor asserted the antenuptial agreement referred to in the will as a bar to the appellant’s statutory election.

After hearings the Orphans’ Court allowed the appellant her election; concluding that the agreement was invalid, and that even if valid it had been breached. On appeal the Superior Court reversed.⁷ Upon request we granted allocatur.

The leading decision in this Commonwealth concerning the interpretation of antenuptial agreements is In re Hillegass Estate, 431 Pa. 144, 244 A.2d 672 (1968). In that case the Court attempted to curb the confusion created by prior characterizations of antenuptial agreements, and expressly set forth basic standards of conduct applicable to the parties and to the agreements themselves.

In the field of Antenuptial Agreements, the pertinent law has been differently and varyingly expressed in a number of cases, with the result that in several respects the law is not as clear, definite and certain as it should be. We shall therefore eliminate the confusion and conflicts resulting from different expressions of the applicable standards and principles by stating clearly and more definitely the applicable standards and principles in this field.

Parties to an Antenuptial Agreement providing for the disposition of their respective estates do not deal at arm’s length, but stand in a relation of mutual confidence and trust that calls for the highest degree of good faith and a reasonable provision for the surviving spouse, or in the absence of such a provision a full and fair disclosure of all pertinent facts and circumstances.

Id., 431 Pa. at 149, 244 A.2d at 675 (footnotes and citations omitted, emphasis in original).⁸

After announcing these standards the Court set forth the following principles.

(1) An Antenuptial Agreement is presumptively valid and binding upon the parties thereto.

(2) The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the deceased spouse at the time of the Agreement made neither (a) a reasonable provision for the intended spouse, nor (b) a full and fair disclosure of his (or her) worth.

(3) In evaluating the reasonableness of the provision for the survivor, such reasonableness must be determined as of the time of the Agreement and not by hindsight. Reasonableness will depend upon the totality of all the facts and circumstance at the time of the Agreement, including (a) the financial worth of the intended husband; (b) the financial status of the intended wife; (c) the age of the parties; (d) the number of children each has; (e) the intelligence of the parties; (f) whether the survivor aided in the accumulation of the wealth of the deceased spouse; and (g) the standard of living which the survivor had before marriage and could reasonably expect to have during marriage.

(4) Full and fair disclosure does not require the disclosure of the exact amount of his or her property.

(5) Even where there is a valid Antenuptial Agreement, this does not prohibit subsequent inter vivos gifts and testamentary bequests to a surviving spouse.

Id,., 431 Pa. at 150-151, 244 A.2d 675-676 (emphasis in original, citations omitted).

The burden in this case was on Mrs. Geyer to demonstrate by clear and convincing evidence that the agreement did not make reasonable provision for her, and that it was entered into without full and fair disclosure by the decedent.⁹ We will consider these requirements in reverse order.

The law is well settled that disclosure between parties need not be exact. Nevertheless disclosure must be “full and fair”. Kaufmann Estate, 404 Pa. 131, 136 n. 8, 171 A.2d 48, 51 n. 8 (1961). Disclosure may be imprecise only to the extent that it does not obscure the general financial resources of the parties. Compare Kaufmann Estate, id. (Agreement stating husband’s worth was “in excess of ten million dollars” was considered full and fair disclosure of estate actually valued at ten and one-half million dollars). Of course, whether adequate disclosure has been made will depend upon the facts and circumstances of the particular situation.

In determining that the appellant entered this agreement with full and fair knowledge of George Geyer’s financial position the Superior Court relied heavily upon the fact that the agreement itself recites as much, and that Mrs. Geyer was cognizant of George Geyer’s comfortable lifestyle and financial interests in the Geyer Lumber and Millwork Company as well as a fuel oil business.

However, the Orphans’ Court found that decedent never revealed to appellant the extent of his real estate holdings. In addition the decedent misrepresented to appellant his ownership interest in a store, Geyer Kraft Korner, which he told the appellant had been owned by his first wife. This was untrue since decedent retained ownership of this store: an interest valued at approximately 120,000 dollars. The collected value of these assets comprised more than 50% of the decedent’s net worth at the time of their agreement. This can hardly be held to be full and fair disclosure.¹⁰ Compare Gelb Estate, 425 Pa. 117, 228 A.2d 367 (1967) (Decedent’s undervaluation of estate by more than 50% deemed to be less than full and fair disclosure). See also Harris Estate, 431 Pa. 293, 245 A.2d 647 (1968) cert. denied, 393 U.S. 1065, 89 S.Ct. 718, 21 L.Ed.2d 707 (1969).

We turn now to the issue of whether this antenuptial agreement made reasonable provision for appellant. In reviewing this issue we are guided by the principle that the adequacy of the agreement’s provisions is to be measured by the terms of the agreement itself, not by events which occurred subsequent to it, Hillegass Estate, supra, 431 Pa. at 150, 244 A.2d at 674. Thus, we expressly disapprove of the Superior Court’s analysis of reasonableness whereby the court considered the inter vivos gifts the decedent conveyed to appellant and the insurance policies which designated her as the beneficiary. See Geyer, supra, 338 Pa.Superior Ct. at 169, 487 A.2d at 907-908.¹¹

The only question before that court was whether the agreement by its own terms made reasonable provision for the surviving spouse. Those terms indicate that in return for appellant’s agreement to surrender her right to elect approximately 300,000 dollars the decedent agreed to convey 20,000 dollars, title to the marital residence, and unspecified household furnishings subject to decedent’s option to make unlimited exceptions. Appellant also relinquished her right to a lifetime military pension of one hundred twenty-five dollars per month; plus two jobs which paid her approximately two hundred dollars per week.

The evidence at trial, which was accepted by the trial judge, indicates that the 20,000 dollar cash gift was basically equivalent to the worth of the Navy pension if the latter was reduced to a present value lump sum. Thus these two factors basically cancel out, and we are left with the question of whether the marital residence and unspecified furnishings constituted reasonable provision for an older woman who would expect to have limited opportunities for employment after the decedent’s death. We think the inescapable conclusion is that this was not reasonable.

The house in question was valued at 50,000 dollars as of the time of the agreement. The house was a single home complete with a two car garage and a built-in swimming pool, and was situated on two acres of ground. The property also contained a free standing cottage which was habitable. It is evident from the record that appellant sought the security of living in this particular house as opposed to being given an asset of comparable value. Thus the question of her ability to continue to reside in this house is particularly germane.

There is little question that a house of this size, with these amenities, requires substantial general maintenance. There is evidence in the record that while decedent was alive he utilized employees from his mill to keep up the grounds. Appellant testified at the trial that she would be unable to maintain this home and continue her lifestyle based on her own resources. This testimony was accepted as true by the Orphans’ Court Judge. Finding of Fact 117. Appellant’s plight was predictable, especially to decedent who, at the time of the antenuptial agreement, was well aware of the costs of running his home. Nevertheless, no provision for the home's maintenance costs were included within the agreement. The net result of this was that the conveyance of the house to appellant was doomed to fail from the beginning.

Moreover, the furnishings which were mentioned in the antenuptial agreement were an unspecified lot of personalty which were subject to decedent's unrestricted option to delete “certain items which will be designated for his child or grandchildren”: an option which decedent exercised to delete almost half of the value of the furnishings only days before his death. Perhaps more importantly decedent never fulfilled his obligation to convey these furnishings since his Will made no provision for their transfer. We have previously held that such a failure to comply with the express terms of the agreement is itself reason to void the agreement. Harrison Estate, 456 Pa. 856, 819 A.2d 5 (1974).

In summary, in return for her love and affection, as well as the sacrifice of her own independence, decedent conveyed to the appellant nothing more than the equivalent of a pension she already had; a property which she would almost certainly have to get rid of; and the possibility of an unspecified amount of “furnishings”. We can hardly say such a one-sided bargain represents reasonable provision under the Hillegass standard.

Our concern however is not at an end. Under Hillegass, supra, the question of what is reasonable in an antenuptial agreement ultimately becomes a question for the courts; a question that makes all antenuptial agreements potentially litigable, notwithstanding that the parties were aware of the terms of the agreement when they signed. Antenuptial agreements which are knowingly and intentionally executed should not be abrogated. Unreasonable conditions or consequences may prove that an agreement was not knowingly entered into; but absent that lack of knowledge the surviving party should be required to live with the bargain. Nonetheless, in order to enforce such an agreement a court should be convinced that the agreement in question was in fact made knowingly and intentionally.

We acknowledge that not all marriages are made in Heaven; nor entered solely for reasons of the heart. There are also reasons of advantage less romantic but part of the realities of life. Whatever those reasons, however, our public policy does not permit one spouse to totally disinherit the other, absent an agreement to the contrary. That public policy, a token of the solemnity of the matrimonial union, requires no less than a condition that any agreement surrendering the right of a spouse to elect against the will must be made under full knowledge of that right.

We therefore think it is fair and reasonable, as well as sound judicial policy, to require that any agreement which seeks to change the duly enacted public policy of this Commonwealth must be based on nothing less than full and fair disclosure. Such disclosure must include both the general financial pictures of the parties involved,¹² and evidence that the parties are aware of the statutory rights which they are relinquishing.¹³

Accordingly, the Order of the Superior Court is reversed.

ZAPPALA, J., files a concurring opinion in which PAPADAKOS, J., joins. NIX, CJ., files a dissenting opinion in which FLAHERTY, J., joins. FLAHERTY, J., files a dissenting opinion.

1 . This case was reassigned to this author.

2 . Act of April 18, 1978, P.L. 42, No. 23, § 3, as amended, July 11, 1980, P.L. 565, No. 118, § 2, 20 Pa.C.S. § 2203.

3 . Seventeen parcels including his home.

4 . The appellant earned $108.00 per week as a piano player in a local restaurant. She also made $75.00 per week as a piano teacher.

5 . This pension featured cost of living adjustments. It terminated upon the appellant’s marriage to Mr. Geyer at which time it paid $125.00 per month.

6 . This document was not witnessed, though the Orphans’ Court determined that it was executed sometime between December 28, 1976, and April 4, 1977.

7 . In re Estate of George W. Geyer, 338 Pa.Super. 157, 487 A.2d 901 (1985).

8 . The basic dictates of In re Hillegass Estate, 431 Pa. 144, 244 A.2d 672 (1968), are gender neutral and, therefore, do not run afoul of this Commonwealth’s equal rights amendment. Pa. Const. Art. 1, § 28.

9 . We note that the Superior Court read Hillegass as requiring an antenuptial agreement to make reasonable provision and to be the entered into after full and fair disclosure. This was a misreading of Hillegass which provides that an agreement can survive if either (but not necessarily both) of these requirements is satisifed. See In re Estate of Hester, 486 Pa. 349, 353 n. 4, 405 A.2d 1244, 1246 n. 4 (1979).

10 . We think the Superior Court’s reliance on the document’s self-serving statement regarding full and fair disclosure was misplaced. When facts prove that a person has been misled that person’s contemporaneous recorded belief that she was not misled is of no value. See Gelb Estate, 425 Pa. 117, 120, 228 A.2d 367, 369 (1967); McClellan Estate, 365 Pa. 401, 406, 75 A.2d 595, 597 (1950).

11 . There is no question that the Superior Court utilized the post-agreement conveyances as important factors in concluding that appellant could live "comfortably” as a result of her marriage to decedent, the implication being that she had no reason to complain about her circumstances. See Geyer supra, 338 Pa.Superior Ct. at 170, 487 A.2d at 908.

12 . See pp. 9, 10 supra. See also, In re Estate of Lopata, 641 P.2d 95.2, 955 (Colo. 1982).

13 . We note that since Hillegass a number of our sister jurisdictions have adopted this tack. Some states have resolved this matter statutorily. See § 15-11-204, C.R.S.1973 (1981) (Colorado); § 474.120 R.S. Mo.1969 (Missouri); Neb.Rev.Stat. § 30.2316 (Risone 1979). See also In Re Estate of Lopata, supra; Hosmer v. Hosmer, 611 S.W.2d 32 (Mo.App.1980); In Re Estate of Hill, 214 Neb. 702, 335 N.W.2d 750 (1983). Other states have allowed their courts to resolve the matter. See McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980); Marschall v. Marschall, 195 N.J.Super. 16, 477 A.2d 833 (1984); Kosik v. George, 253 Or. 15, 452 P.2d 560 (1969). See generally, Rosenberg v. Lipnick, 377 Mass. 666, 389 N.E.2d 385 (1979).

In all instances, however, those jurisdictions have recognized that a party’s execution of an antenuptial agreement respresents his or her waiver of statutory rights; and since a waiver is defined as the intentional relinquishment of a known right, that right can only be "known” if there is full awareness of the governing law and the other party’s assets.