01-1025 Jones v. Jones

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Mary Ann and Robert signed a prenuptial agreement as described; Robert owned the home where they lived as individual property; Robert then deeded it to Mary Ann, who deeded it that same day to Robert’s adult sons (retaining a life estate for the life of Robert plus one year); Robert died and Mary Ann now seeks to invalidate her deed to the sons.

Mary Ann argues that because Robert did not sign the warranty deed conveying the to the sons, the deed is invalid for not conforming with the statute of frauds requirements of Wis. Stat.706.02(1)(f).

The deeds from Robert to Mary Ann and from Mary Ann to the sons described the property as homestead property, and Robert and Mary Ann lived in the home, making it in fact homestead property; the circuit court erred in finding that the prenuptial agreement operated to prevent the home from becoming homestead property.

A premarital agreement is a contract, in which the parties may waive statutory rights; the language of this agreement indicated a clear intent to waive all claims; though the better practice would be to include explicit language waiving homestead rights.

This decision is consistent with the purpose of the homestead protection, which is to protect the homestead and the family from unilateral action by one spouse to the detriment of the other. Where both spouses act affirmatively by entering into a premarital agreement, however, we are not faced with one spouse unilaterally acting to the detriment of the other.

We decline to address whether or how any changed circumstances – for example, the presence of minor children – would affect the holding in this case.

Affirmed.

Recommended for publication in the official reports.

On Cert. from the Court of Appeals, Dist. II, appeal of an order of the Circuit Court for Sheboygan County; N. Patrick Crooks, J.

Attorneys:

For Appellant: Dennis H. Milbrath, Robert J. Asti, Cedarburg

For Respondent: Robert H. Halvorsen, Sheboygan