Widow Is Impoverished, But Prenuptial Agreement Stands


Emanuel Lutz was 60 when he met and began dating Lavilla Oswald, a 53-year-old divorcee. The North Dakota couple moved in together in 1986 and shortly began discussing getting married.

Mr. Lutz had two children from his first marriage, and he wanted to make sure his estate would pass to those children upon his death. He talked to his attorney about giving the future Mrs. Lutz the right to live in the duplex he owned, but nothing else, if he were to marry her.

Over an eight month period Mr. Lutz met several times with his attorney, sometimes with Ms. Oswald along. Drafts were prepared, though Mr. Lutz’ attorney deleted a provision giving the Lutz children the power to force Ms. Oswald out of the duplex; he reasoned that such a provision would be unacceptable to Ms. Oswald and the attorney she hired to review the prenuptial agreement.

Ms. Oswald never did get around to seeking her own legal counsel, however. On February 1, 1988, Mr. Lutz and Ms. Oswald met in the attorney’s office and signed the prenuptial agreement as it had been prepared by Mr. Lutz’ attorney. The couple was married on Valentine’s Day, less than two weeks later.

After six years of marriage Mr. Lutz was diagnosed with colon cancer in 1994. He died—at home, enrolled in a hospice program—in November of that year.

Mrs. Lutz made three claims against her late husband’s $400,000 estate. She argued that she should receive almost $40,000 to compensate her for the extraordinary care she had to provide to her husband during his last year of medical problems. She argued that the prenuptial agreement was invalid, both because she did not have separate counsel and because Mr. Lutz had privately assured her that she would receive a larger share of his estate. She also claimed that the prenuptial agreement was unconscionable, because it would leave her destitute and dependent on government assistance.

The North Dakota Supreme Court dismissed each of Mrs. Lutz’ claims, ruling that:

A family member is ordinarily not entitled to payment for nursing care provided, unless there is a prior agreement or the services are extraordinary. The care Mrs. Lutz provided, while extensive, was not extraordinary.
Mrs. Lutz had been advised that she should have sought her own independent legal advice, and could not complain of any unfairness simply because her husband’s attorney prepared the prenuptial agreement.
Because the right to reside in the duplex was worth almost $100,000, Mrs. Lutz was receiving nearly one-quarter of the estate. The result was not unconscionable. The fact that Mrs. Lutz would have to live on her Social Security income and might later need public assistance with her own nursing care was not sufficient reason to require her husband’s estate to pay her $250/month, as she had requested.

Mr. Lutz’ prenuptial agreement was upheld, and accomplished exactly what he had intended. Estate of Lutz, December 29, 2000.

©2021 Fleming & Curti, PLC