In re Wilber
| Decision Date | 21 August 2013 |
| Docket Number | No. 2012-368,2012-368 |
| Citation | 165 N.H. 246,75 A.3d 1096 |
| Parties | IN RE ESTATE OFRichard B. WILBER |
| Court | New Hampshire Supreme Court |
165 N.H. 246
75 A.3d 1096
IN RE ESTATE OFRichard B. WILBER
No. 2012-368
Supreme Court of New Hampshire.
Argued: April 11, 2013
Opinion Issued: August 21, 2013
Ransmeier & Spellman, P.C., of Concord (Frank E. Kenison and John T. Alexander on the brief, and Mr. Alexander orally), for the respondent.
Upton & Hatfield, LLP, of Concord (Douglas S. Hatfield and Matthew R. Serge on the brief, and Mr. Hatfield orally), for the petitioner.
HICKS, J.
The petitioner, Estate of Richard Wilber (Richard's Estate), appeals a decision of the 9th Circuit—Nashua Probate Division (O'Neill, J.) allowing the respondent, Estate of Josephine Wilber (Josephine's Estate), to claim a statutory share under RSA 560:10 (2007) of certain real property located in Hillsborough. We reverse and remand.
I
The following facts are undisputed. Richard and Josephine Wilber were married for approximately fifty years. Richard owned property in both Maryland and New Hampshire. On March 19, 2007, the Wilbers executed a contract (the Agreement) in which Richard agreed to transfer his Maryland property to Josephine and she, in turn, agreed to allow him to live in the house on the property until his death or until he no longer wished to live there. Richard also agreed not to make any claims on the Maryland property during his life or "after [his] death," and Josephine, in return, agreed not to make any claims on Richard's New Hampshire property (the Property) during her life or "after [her] death."
Richard died testate on October 18, 2010, omitting Josephine from his will. The executor of Richard's estate in Maryland, his state of domicile, filed ancillary administration in the 9th Circuit—Nashua Probate Division to distribute property he owned in New Hampshire. In December 2010, Josephine filed a waiver by surviving spouse in the probate division, seeking a statutory share of the Property under RSA 560:10, which allows a surviving spouse to waive the decedent spouse's will and take a specified portion of the estate. Josephine died on March 12, 2011, leaving the executor of her estate, Rosemary Heyne, to pursue her claim. Richard's Estate opposed the waiver on several grounds, among them: (1) Josephine had already petitioned the Orphans' Court for Prince George's County, Maryland for a statutory share of his estate, and had been denied for untimeliness; and (2) Josephine waived her right to pursue a statutory share by promising in the Agreement to make no claims on the Property during her life or after death. The probate division disagreed on both grounds, ruling that it had ancillary jurisdiction over the Property and that the Agreement did not satisfy "the necessary criteria to be a valid and enforceable postnuptial agreement." This appeal followed.
II
Richard's Estate argues that the trial court erred in failing to enforce the Property Agreement. Josephine's Estate, on
the other hand, argues that: (1) New Hampshire has not recognized the validity of postnuptial agreements and this court should not do so absent legislative enactment; and (2) the trial court committed no error in finding the agreement fundamentally unfair and, thus, unenforceable.
A
As the name suggests, a postnuptial agreement "is an agreement that determines a couple's rights and obligations upon divorce" or death, but, unlike an antenuptial agreement, "is entered into after a couple weds but before they separate." Williams, Postnuptial Agreements, 2007 Wis. L.Rev. 827, 828 (2007).
Josephine's Estate contends, at the outset, that although Maryland recognizes postnuptial agreements, it is "[d]oubtful" that Maryland courts would have enforced the Agreement. Richard's Estate does not explicitly disagree, but rather cites New Hampshire precedents to support its position that the Agreement should be enforced. Because neither party has asked us to apply Maryland law to determine whether the Agreement bars Josephine's Estate's claim to a statutory share, we will apply the common law of New Hampshire to decide that question. See Centronics, Corp. v. Genicom Corp., 132 N.H. 133, 139, 562 A.2d 187 (1989) ("Since the New York decisions are not at odds with our own, ... and since neither party has suggested that the relevant substantive law differs between the two jurisdictions, we will assume that to whatever extent the governing foreign law has not been proven it is identical to our own.").
Postnuptial agreements are neither prohibited nor specifically authorized by our statutes, cf. RSA 460:2–a (2004) (recognizing antenuptial agreements), and we have had no occasion to address them under our common law. Courts and legislatures long ago abandoned the common law rule that a husband and wife could not contract with one another. See Adams v. Adams, 80 N.H. 80, 86, 113 A. 279 (1921). The modern view is that spouses may freely enter contractual relationships, and courts will uphold them if they satisfy the criteria of contract formation and are otherwise fair. See id. ; Williams, supra at 838–39. As early as 1900, in Foote v. Nickerson, 70 N.H. 496, 48 A. 1088 (1900), we signaled our willingness to give effect to postnuptial agreements when we stated that "[a]n agreement renouncing marital rights is void," but that "[a]n agreement touching property rights may be valid." Foote, 70 N.H. at 518, 48 A. 1088. Similarly, in Hill v. Hill, 74 N.H. 288, 67 A. 406 (1907), we suggested that contracts between a husband and wife may be upheld as
long as they did not "contemplate a renunciation of marital ... rights." Hill , 74 N.H. at 290, 67 A. 406. Although, as in Foote, the court in Hill did not expressly consider whether spouses "can make a valid agreement between themselves touching their respective rights in each other's property," id. the analysis in Hill essentially assumed that they could do so. See id. at 290–91, 67 A. 406.
In recent years, courts have generally recognized and enforced postnuptial agreements, even in the absence of express legislative approval. See, e.g., In re Marriage of Traster, 48 Kan.App.2d 356, 291 P.3d 494, 501, 512 (2012) ; Ansin v. Craven–Ansin, 457 Mass. 283, 929 N.E.2d 955, 961, 969 (2010) ; In re Marriage of Friedman, 100 Cal.App.4th 65, 122 Cal.Rptr.2d 412, 418 (2002). One recent example is Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011), a case in which the Connecticut Supreme Court opined that "[p]ostnuptial agreements are consistent with public policy" because they "realistically acknowledge the high incidence of divorce" and "allow two mature adults to handle their own financial affairs."
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