Flagship Nat. Bank of Miami v. King
| Decision Date | 29 June 1982 |
| Docket Number | No. 81-2206,81-2206 |
| Citation | 418 So.2d 275 |
| Parties | FLAGSHIP NATIONAL BANK OF MIAMI and Charles Curtis King, Jr., as Personal Representatives of the Estate of Charles Curtis King, Deceased, Appellants, v. Susan Fitzgerald KING, Appellee. |
| Court | Florida District Court of Appeals |
Therrel, Baisden, Stanton, Wood & Setlin and Howard Setlin, Miami Beach, for appellants.
John F. Muckerman, Miami Beach, for appellee.
Before SCHWARTZ, NESBITT and JORGENSON, JJ.
Prior to their marriage, Mr. and Mrs. King made an oral agreement that neither would have a claim upon the other's separate property when he or she died. Afterwards, they memorialized this understanding in writing. The trial judge held that the provisions of Section 732.702(2), Fla.Stat. (1979), which require a "fair disclosure" of a spouse's assets to validate such a waiver by the other after marriage, controlled these facts and, in the absence of a showing that such a disclosure had been made, therefore struck the objections of Mr. King's personal representatives to any claim by the widow to a family allowance and her elective share of his estate. We hold to the contrary that the prenuptial date when the original agreement was entered is determinative. Since no disclosure is required under the statute to sustain a waiver agreed to at that time, we reverse the judgment under review.
When the Kings met in 1959, he was seventy-one and she fifty-two years of age. Each had been married twice before and each had grown children. Each had two other important things in common. They were both obviously persons of substantial independent means; 1 and both wished to preserve their respective individual resources for the benefit of their own families. Accordingly, before their marriage, which took place on January 21, 1960, they specifically agreed that, when they died, neither would take any part of his or her spouse's estate. Although this prenuptial agreement was not in writing, its existence was indisputably established by repeated post-marriage statements which were. The first of these was embodied in a will executed by Mr. King on June 5, 1964, the first paragraph of which stated clearly:
[T]he name of my present wife is SUSAN FITZGERALD KING, more commonly known as SUE KING, whom I married on January 21, 1960; that prior to our marriage, we orally agreed that each of us should have, keep, and retain full ownership, control and enjoyment of all property owned by us respectively; that each of us should have the sole, exclusive and absolute right to dispose by Will or otherwise of any and all property, real, personal, or mixed, owned by either of us at the time of marriage; in like manner as if our marriage had not taken place and each of us had remained unmarried; and we further agreed that all of the income, rents, issues, profits, dividends and interest arising or emanating from our respective property holdings should be and belong exclusively to the owner thereof. This declaration shall constitute a written memorial of our said oral agreement.
At the foot of her husband's will, Mrs. King made the following duly witnessed "declaration by wife":
I, SUSAN FITZGERALD KING, wife of Charles Curtis King, hereby certify (1) that I have read the foregoing Will of my husband, Charles Curtis King; (2) that the declarations contained therein with respect to our oral agreement are true and correct; and (3) that I hereby ratify and confirm our oral agreement with respect to the disposition of our respective property and the income, rents, issues profits, and dividends and interest thereof.
DATED at Miami Beach, Dade County, Florida, this 5th day of June, 1964.
/s/ Susan Fitzgerald King
On April 18, 1966, in turn, Mrs. King made a will and the husband made an appended declaration which respectively tracked these provisions of Mr. King's 1964 will. Moreover, Mrs. King included a further statement that
I expressly make no provision for my beloved husband, CHARLES CURTIS KING, not because of any lack of love or affection for him, but solely because (1) he has adequate independent means of his own; and (2) he has expressly requested to be omitted herefrom; and (3) our mutual desire to provide for our respective children of prior marriages.
Clauses almost identical to these were included both in Mrs. King's later will of 1973 and Mr. King's, executed in 1978.
The Kings' marriage lasted for almost twenty years. During that time, they conducted their financial affairs in a manner thoroughly consistent with these expressed intentions. Soon after the marriage, for example, they bought a home on La Gorce Island in Miami Beach by the entireties, with each paying 50% of the purchase price from individual resources. Mrs. King paid for her own expenses from her own funds, and even bought a home in Highlands, North Carolina which was placed in her name alone. Similarly, each spouse filed individual income and intangible tax returns throughout the marriage.
On January 2, 1980, Mr. King died, leaving a probatable estate of about $800,000 2 almost entirely to his son, Charles King, Jr., who is one of the present appellants. In accordance with their agreement, he bequeathed nothing to his widow. Notwithstanding their mutual understanding and the fact that she was revealed to have separate assets of substantially greater value than Mr. King's, at least $1,500,000, Mrs. King claimed the right to a family allowance, Sec. 732.403, Fla.Stat. (1979), and an elective share of her husband's estate, Sec. 732.201, Fla.Stat. (1979). After a trial at which Mr. King's representatives could not demonstrate that he had made any particular revelation of his assets to Mrs. King either before or after the marriage, 3 the lower court concluded (a) that, although the parties had indeed agreed to waive their respective rights before the marriage, the agreement was invalid because it was not then in writing, and (b) that the postnuptial written memoranda of that agreement were ineffective because they were not preceded by a "fair disclosure" of Mr. King's estate. Hence, the representatives' petition to disallow Mrs. King's claims was denied.
Our disagreement with this position is necessarily based on our interpretation of Sec. 732.702, Fla.Stat. (1979) which, as all agree, is controlling because Mr. King died after its effective date. Topper v. Stewart, 388 So.2d 1270 (Fla. 3d DCA 1980), review denied, 397 So.2d 779 (Fla.1981). Briefly summarized, the statute 4 validates agreements to waive the rights of a surviving spouse in probate so long as the agreement is in writing, and, in the case of a waiver after, but not before the marriage, is accompanied by a "fair disclosure" of the assets of the other spouse. See generally, Weintraub v. Weintraub, 417 So.2d 629 (1982). The obvious reasons for the statute's elimination of the disclosure requirement in the antenuptial situation only are simultaneously to encourage marriage and to recognize that the respective financial duties and responsibilities which marriage itself entails are sufficient bulwarks against the possibility of a spouse's being disadvantaged by an agreement which is not based upon a reasonable understanding of the extent of the other's resources. 5 On the other hand, when the marriage has already taken place, the need to foster it no longer applies; at the same time, the confidential relationship which has arisen between the parties requires that, at the least, fair disclosure form the basis of any such undertaking. The other requirement of Sec. 732.702 that the contract be in writing, which applies in all instances, is, like every such Statute of Frauds provision, simply based upon the prevention of fraudulent claims, 73 Am.Jur.2d Statute of Frauds §§ 510, 562 (1974)--a requirement which has special force in a situation in which one of the parties to the asserted agreement is necessarily dead. Putting the two aspects of the statutory reasoning together, it is apparent that they are both satisfied whenever, as in this case, an agreement is actually reached--without disclosure--before the parties marry if it is reduced to writing at any stage, either before or after the marriage takes place. Of course, our primary, indeed exclusive concern in the realm of statutory interpretation is to vindicate the legislative intent, 30 Fla.Jur. Statutes § 77 (1974), considered in terms of the evident policy and purposes which underlie the provision in question, 30 Fla.Jur. Statutes §§ 104-107 (1974). We therefore adopt that construction here. 6
Since the object of judicial decision-making in general is likewise to reach results which conform to the requirements of common sense and reasonableness, it is neither surprising nor coincidental that the same conclusion follows from a more traditional, legally antiseptic analysis of the issue before us. It is well established that under Statutes of Frauds like Florida's in general and this one in particular 7 which do not render oral contracts "void," see 73 Am.Jur.2d Statutes of Frauds § 513 (1974), such an unwritten agreement is merely unenforceable. Accordingly, it may thereafter be rendered completely enforceable by the execution of a sufficient subsequent memorandum of the original oral undertaking. Rank v. Sullivan, 132 So.2d 32, 36 (Fla. 2d DCA 1961). Specifically, a memorandum may include one contained, as in Mrs. King's case, in a will. Rank v. Sullivan supra. When that occurs, it is the oral contract--and not the subsequent memorandum which merely evidences its existence--which is given effect. As was said in Simpson v. Green, 231 S.W. 375 (Tex.Comm.App.1921):
When a sufficient memorandum of a prior oral...
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