STATE OF MINNESOTA
IN COURT OF APPEALS
Vincent J. Villella.
Filed November 23, 1999
Ramsey County District Court
File No. P4-96-5616
Michael J. Smith, C. Brent Robbins, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant Gail Villella)
Neal T. Buethe, Ann Huntrods, Darlene M. Cobian, Briggs and Morgan, P.A., 2200 First Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent estate)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Holtan, Judge.
Appellant, a widow, challenges the district court's determination that the antenuptial agreement she signed with her deceased husband is enforceable and precludes her from taking an elective spousal share of his estate. Because she does not meet her burden of proving that the antenuptial agreement is unenforceable, we affirm.
Decedent Vincent Villella and appellant Gail Villella were married in December 1971. It was the second marriage for each of them; appellant had no children, but decedent had five children from his previous marriage. Nine days before their marriage, appellant and decedent executed an antenuptial agreement in the presence of decedent's lawyer. Decedent had expressed his desire to provide for his children from his estate; appellant understood this was the purpose of the agreement. Decedent's will, dated 1990, named his son, respondent Vincent Villella II, as his personal representative.
After decedent died in 1996, appellant filed notice that she intended to claim her elective share of his estate and petitioned for formal probate and formal appointment of personal representative. Respondent petitioned for dismissal of appellant's notice of election of elective share and petition for formal probate. His petition was granted on the ground that there were no assets in the augmented estate.
Appellant challenged the dismissal, and this court reversed and remanded for the district court to determine (1) whether there is evidence of consent to transfers of real property and the extent and value of the augmented estate and (2) the applicability of the antenuptial agreement. In re Estate of Vincent Villella, No. C9-97-1155 (Minn. App. Jan. 13, 1998). Following a hearing, the district court determined that the antenuptial agreement is enforceable. Appellant challenges this determination.
Appellant, as the party challenging the antenuptial agreement, has the burden of production of evidence and the burden of persuasion. See Button v. Button, 388 N.W.2d 546, 550 (Wis. 1986) (statute putting burden on challenging party demonstrates "the legislature's interest in giving effect to the parties' agreement to the extent possible"). Appellant raises five arguments: (1) the antenuptial agreement was procured by fraud; (2) it failed procedural requirements; (3) decedent breached it; (4) decedent committed fraud in an unrelated transaction; and (5) the agreement was substantively unfair.
Appellant cites Schumacher v. Schumacher, 388 N.W.2d 912 (Wis. 1986), to argue that she was fraudulently induced to sign the antenuptial agreement. Schumacher found an antenuptial agreement inequitable as a matter of law
because the parties did not fairly and reasonably disclose their assets nor did they have independent knowledge of one another's financial status.
Id. at 915. In Schumacher, the husband had not disclosed a significant appreciating asset to his wife, who nevertheless signed an agreement renouncing any interest in the asset or the appreciation that occurred during the marriage. The wife's independent knowledge of the husband's assets was only a general and imputed knowledge of their value; it was deemed insufficient to meet the "independent knowledge" criterion. Id. at 914-15.
Here, testimony showed that, because appellant and decedent worked for the same employer, she knew he was a member of the management team, had a retirement account, and planned to retire early; she also knew the extent of his real estate holdings and his standard of living, because she had shared it. There is no evidence of concealment of an asset; there was no fraud in procuring her signature.
2. Procedural Requirements
Appellant also argues that she did not sign the agreement freely and voluntarily, citing Button, 388 N.W.2d at 551, which requires that each party be represented by independent counsel, have adequate time to review the agreement, understand the terms of the agreement, and understand what the financial position would be absent an agreement. Appellant, however, substantially met those criteria. She agreed to sign the agreement after spending 10 minutes reviewing it at her husband's house and 15 minutes with his attorney, whom she did not question. She did not ask to have independent counsel review the agreement, although she was used to dealing with attorneys and had retained one to handle her divorce. She was 32, divorced and living on her own, and familiar with financial matters from her job. Her wedding date was nine days away; no formal plans had been made. Had appellant wanted counsel to review the agreement before she signed, she could have arranged it.
3. Decedent's Alleged Breach of the Agreement
Appellant argues that decedent breached the agreement by purchasing a home with nonmarital funds, selling it after they had lived in it for several years, and giving her a check for what he considered to be her share, i.e., half the net equity. Appellant argues the transaction was fraudulent because the agreement provided that
all property hereafter acquired by the parties as joint tenants shall be held, used and owned by them as joint tenants during their lives, and upon the deaths of either of the parties, all rights shall vest in the survivor.
Decedent dissolved the joint tenancy in which he and appellant held the property, converting it to a tenancy in common. When the property was sold, appellant was entitled to the proceeds from her half-share, which she received. She does not show breach of the agreement.
4. Decedent's Alleged Fraud
Appellant and decedent purchased a house out of their joint savings and common fund. Later, appellant agreed to transfer her equity in that house to make 50% of the $18,600 down payment on another house the parties were buying for $77,000. After her husband's death, appellant found a record of the deposit of $58,949 in proceeds from the sale of the second house. She inferred from this that decedent had not in fact made the down payment on the house and alleged fraud, but was unable to provide any credible evidence. She testified that during decedent's life she believed he had made the down payment. Particularly in light of the district court's ability to judge the credibility of witnesses, its finding that there was no substantiated fraud is not erroneous.
5. Substantive Unfairness
Appellant claims that the agreement is unenforceable because circumstances at the time of decedent's death had significantly changed from the circumstances when the agreement was executed. But the fairness of an agreement at the time of enforcement is considered only "if circumstances [have] significantly changed since the agreement [was executed]." Button, 388 N.W.2d at 548. Appellant does not explain what circumstances changed, or refute the district court's finding that during the marriage each party complied with the terms of the antenuptial agreement to a significant extent. Absent a showing of change in circumstances, the fairness of the agreement at the time of decedent's death is not at issue.
Moreover, mere inequity in the division of property does not void an antenuptial agreement. Id. at 552. Appellant shows only that she was not receiving the equivalent of a spousal elective share; she does not show that the agreement was unfair.
We conclude that appellant does not meet her burden of showing that the antenuptial agreement is unenforceable.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The parties agree that Wisconsin law applies.
 The alleged fraud had no relationship to the antenuptial agreement at issue here.