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Factual Background:

Four months after the death of her husband, Lois Kell married Tony Pulley, a man more than twenty years her junior.  Lois brought substantial assets, most held in real estate, to the marriage.  Pulley, on the other hand, brought little or no assets to the marriage, and had substantial outstanding financial liabilities.  Prior to their marriage Lois created a revocable trust which was funded by the various properties she owned as well as with other various personal property, which was to provide for Lois’s children upon her death.  The Trust, however, explicitly left nothing to Pulley.  In addition to the Trust, Lois and Pulley executed an antenuptial agreement in which Pulley waived any right he may have had to the Trust assets.  As consideration Lois waived any rights she had in the assets Pulley brought to the marriage.   While Lois drafted these documents, she failed to draft a new will, and she continued to utilize a will drafted when she was still married to her first husband, providing him with the majority of her estate.  At the time of her death in 2004, Lois died testate with this will still in effect.   Upon her death Pulley sought to have the will, trust, and antenuptial agreement set aside as void, arguing that (1) he was owed an intestate share of the estate as a pretermitted spouse, (2) that the antenuptial agreement was invalid contract because it lacked adequate consideration, (3) that the antenuptial agreement was invalid because Ms. Kell had failed to properly disclose her assets, and (4) that he was overreached during the execution of the antenuptial agreement for lack of proper assistance of counsel.  The Circuit Court of Ray County, Busch, J., held that Pulley was a pretermitted spouse and awarded him an intestate share of Lois’s probate estate and invalidated the antenuptial agreement as void and unenforceable.

Held:

1. Where a testator fails to provide for their surviving spouse, and nothing indicates that the omission was intentional and that no non-testamentary disposition was made to the surviving spouse, then the surviving spouse qualifies as a pretermitted spouse pursuant to RSMo. §474.235 and therefore is entitled to his or her intestate share of the probate estate.
2. Financial consideration is not required to support an antenuptial
   agreement—the consideration must only be fair under all the circumstances.  A mutual waiver of rights to the other spouse’s estate is per se sufficient consideration to support an antenuptial agreement.
3. A full disclosure of the relative financial positions of the parties is not required for an antenuptial agreement to be enforceable—the disclosures made must only be sufficient for the spouse against whom enforcement is sought to evaluate the extent and nature of the property under the agreement.  Further, disclosure need not be in the document itself, and constructive disclosure of the assets is sufficient.
4. A party to an antenuptial agreement cannot seek to have it set aside for lack of legal counsel where the party did not voice concerns about the consequences of executing the agreement at the time of execution and did not seek to protect his or her self in any way.  In such a situation, the party may not then claim that he or she was overreached once enforcement is sought.

Rationale:

Here, Pulley qualifies as a pretermitted spouse.  Lois failed to make a testamentary disposition for him as her surviving spouse, and no new will was executed by her after her marriage to Pulley.  Nothing indicates that the omission of a testimentory disposition in Pulley’s favor was intentional, and nothing indicates that any non-testamentary provision was made for Pulley.  As such, Pulley squarely qualifies as pretermitted spouse, and is entitilted to an intestate share of Lois’s probate estate by operation of RSMo. §474.235.

While Pulley’s waiver of rights was of far more value than Lois’s waiver of similar rights under the antenuptial agreement, such inequality in the value of the rights waived is of no consequence.  Here, in exchange for Pulley’s waiver of rights to Lois’s property in the trust, Lois agreed to waive any rights she may have had in Pulley’s assets.  All that is necessary is that each has waived some right to the assets of the other.  The disparity in the relative wealth of Lois and Pulley does not invalidate the consideration provided as the law does not require an exact equivalence between the rights being waived.

While the antenuptial agreement between Lois and Pulley listed a number of Lois’s assets, and particularly those real properties held by the trust, not all assets held by the trust at the time of Lois’s death were disclosed therein.  However, a failure to disclose each and every asset in the trust does not invalidate the agreement.  Pulley still had constructive notice of all assets held by the trust.  During their dating, Pulley toured Lois’s properties with her, knew their square footage, and was told which were or were not rented.  Such constructive notice was sufficient.  As a result, Pulley had knowledge of all of Lois’s assets in question.

Here, it cannot be said that Pulley’s lack of counsel before signing the antenuptial agreement constituted overreaching.  Lois had expressed to Pulley her desire to preserve her property for her children.  Pulley never attempted to read the document before signing, even though he was provided ample opportunity to do so.  He never sought legal counsel with regard to the agreement, and conceded that he was never stopped from seeking such counsel.  He conceded that he freely and voluntarily signed the agreement, and that he could have refused to sign it.  Most importantly, Pulley did nothing to protect himself at the time of execution of the document, but rather, waited until Lois was deceased to claim that he had been overreached.  For the trial court to claim lack of counsel as the only means of finding overreaching was a misapplication of the law.