Court Finds Devises to Spouse Not Contingent Upon Couple’s Marriage

Naomi Cahn (John Theodore Fey Research Professor of Law, GWU Law School) recently sent me an overview of Estate of Paulson, 2012 ND 40, a case that invloves a premarital agreement, a devise to a “spouse”, and a death prior to the marriage. Prof. Cahn’s overview of the case is below, in its entirety:

A will executed by a man prior to his marriage, in which he left all his property to “my spouse, Robyn” and established a trust for her child, was properly interpreted in her favor following his death three days before their wedding, the North Dakota Supreme Court held Feb. 21. The will stated in a footnote, that it had been prepared in anticipation of the couple’s marriage, and was executed on the same day that they signed a premarital agreement, which provided that the decedent agreed to transfer specific real property to Robyn Risovi, name her as beneficiary of his life insurance, and establish a testamentary trust for her daughter. After his death, the district court found that Risovi was an unconditional devisee of the will and entitled to take under it. The court refused to read the premarital agreement together with the will to determine the man’s testamentary intent, because the agreement was not incorporated into the will by reference. The decedent’s family appealed.

Affirming, Chief Justice Gerald W. VandeWalle rejected the family’s claim that the will and antenuptial agreement unambiguously established that the devises to Risovi in the will were contingent upon the couple’s marriage. Conditions in a will are disfavored, he explained, adding the terms “spouse” and “wife” as used in the will “were descriptive of Risovi and did not create a condition precedent to her right to receive the devises.” VandeWalle also found that the footnote in the will evidenced the man’s intent that it be effective both before and after the marriage. He rejected the family’s argument that the antenuptial agreement should be read with the will under the contemporaneous execution doctrine, which requires that instruments related to the same transaction and executed at the same time be read and construed together. Noting that his court has not determined the appropriateness of such doctrine when interpreting a will, he said that “[b]ecause we hold the will is unambiguous, the antenuptial agreement cannot be admitted to ‘create an ambiguity and then to remove it’.” Nor was the agreement incorporated by reference so as to allow it to be construed with the will, VandeWalle observed, concluding that “[i]n any event, an antenuptial agreement does not necessarily govern the distribution of property if the parties never married because such an agreement is only effective upon marriage.”

The man’s family was represented by David S. Maring, Bismarck, N.D., and the woman by Sara K. Sorenson, West Fargo, N.D. (In re Estate of Paulson (Paulson v. Risovi), N.D., No. 20110154, 2/21/12).