Jerry Cantrell lived in Tennessee and owned property there and in Kentucky. Mr. Cantrell was single, but had five adult children from a former marriage. In 1994, he saw Analyn Rojo’s picture in a mail-order bride magazine, and he got in touch with Ms. Rojo. They arranged to meet in Vancouver in October, and began to live together there.

In January, 1997, Ms. Rojo delivered Mr. Cantrell’s son. The couple decided they should consider getting married, and so they traveled to Kentucky to make the arrangements. In March, Mr. Cantrell consulted his Louisville, Kentucky, lawyer about preparing a prenuptial agreement.

Mr. Cantrell’s lawyer advised him that Kentucky law permitted prenuptial agreements, but only if both parties entered into the agreement voluntarily and had fully disclosed their assets to one another. In order to make sure the prenuptial would be enforceable later, Mr. Cantrell arranged for Ms. Rojo to be represented by her own attorney. She met privately with her attorney for half an hour on February 27 and again the next day.

Meanwhile, Mr. Cantrell’s attorney had prepared a prenuptial agreement. Under the proposed agreement, Ms. Rojo and Mr. Cantrell each waived any right they might have to inherit from the other’s estate, and waived any claims they might have for support during probate proceedings. He also attached a list of Mr. Cantrell’s assets for Ms. Rojo’s review.

On February 28, the couple and their lawyers met. Ms. Rojo looked at Mr. Cantrell’s property list for about three seconds, and then signed the agreement. Three days later, the couple was married.

Mr. Cantrell died eight months after the marriage. Ms. Rojo (now Mrs. Cantrell) filed a request for temporary support from the estate, as well as asserting her right to inherit a portion of Mr. Cantrell’s assets. His adult children objected, citing the prenuptial agreement.

Mrs. Cantrell claimed that she had not had sufficient time to review Mr. Cantrell’s assets when the agreement was signed, and that he had threatened her with deportation in order to secure her signature. The Tennessee court refused to permit her testimony about threats, and determined that her failure to review the asset list was her own fault; the prenuptial agreement was upheld.

The Tennessee Court of Appeals agreed with the trial judge, while noting that the claims of Mr. Cantrell’s minor child might not have been disposed of by Mrs. Cantrell’s signing. The prenuptial agreement, however, complied with both Kentucky and Tennessee requirements, and precluded Mrs. Cantrell from now asserting any claim against the estate. Cantrell v. Estate of Cantrell, December 30, 1999.

Arizona law would probably lead to the same result. Prenuptial agreements are permissible, provided that both parties enter into the agreement freely and with full disclosure of the assets owned by the other spouse-to-be. Failure to spend the time necessary to review the financial disclosure would probably not be grounds for invalidating an Arizona agreement.
 
  

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2009 Fleming & Curti, P.L.C.
330 N. Granada Avenue, Tucson, Arizona 85701
520-622-0400 /  FAX: 520-203-0240