ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
ROBERT J. PALMER JAMES A. MASTERS
May, Oberfell & Lorber Nemeth, Feeney, Masters, P.C.
South Bend, Indiana South Bend, Indiana
Zappia & Zappia
South Bend, Indiana
COURT OF APPEALS OF INDIANA
MARK BOETSMA and MICHAEL BOETSMA, )
As Co-Personal Representatives of the Estate )
Of Terry Boetsma, )
vs. ) No. 71A03-0107-CV-253
MARIE BOETSMA, )
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
Cause No. 71J01-0006-ES-285
May 30, 2002
OPINION - FOR PUBLICATION
Mark Boetsma and Michael Boetsma, Co-Personal Representatives of the
Estate of Terry Boetsma, appeal the trial court’s ruling that denied their
objection to Marie Boetsma’s election to take against Terry’s will. Co-
Personal Representatives raise several issues on appeal, which we
consolidate and restate as: whether Marie waived her statutory rights to a
spousal allowance and opportunity to elect to take against the will of her
deceased husband when she executed an antenuptial agreement that expressly
waived those rights.
FACTS AND PROCEDURAL HISTORY
Terry and Marie lived together for approximately nine years, and
during that time “[e]verything was separate,” except that they shared in
the maintenance and expenses of the home in which they resided.
Appellants’ Appendix at 109-10. In early 2000, while Terry was a patient
in the hospital, Terry and Marie discussed having wills prepared for each
of them, and Terry indicated his desire for an antenuptial agreement.
Thereafter, Marie contacted attorney Michael Murphy and asked him to draft
an antenuptial agreement and wills for her and Terry. On February 8, 2000,
Murphy met with Marie, Terry, and Terry’s son, Mark Boetsma, at the
hospital to discuss the matter. Murphy prepared the documents and mailed
them to Terry and Marie’s home on February 9, 2000. On February 14, 2000,
in Terry’s hospital room, Terry and Marie executed the antenuptial
agreement in the presence of counsel and a witness. Minutes later, they
each executed their respective wills. They married that same day.
Terry died on May 20, 2000. On June 15, 2000, his sons Mark and
Michael Boetsma filed a petition for probate of their father’s will, and
the court appointed them Co-Personal Representatives of the estate. On
November 16, 2000, Marie, as a surviving spouse, filed a spousal election
to take against Terry’s will. Thereafter, Co-Personal Representatives
filed an objection, asserting that Marie had waived her right to take
against the will by executing the antenuptial agreement. Following a
hearing, the court denied the objection and found that Marie did not waive
her right to take against the will nor her right to any spousal allowance.
Co-Personal Representatives now appeal.
DISCUSSION AND DECISION
I. Standard of Review
The parties dispute the appropriate standard of review to be applied
in this appeal. Co-Personal Representatives maintain that the trial
court’s order constitutes sua sponte findings of fact and conclusions of
law, for which the appellate court applies the established two-tiered
standard of review:
First, it must determine whether the evidence supports the trial
court’s findings of fact; second, it must determine whether those
findings of fact support the trial court’s conclusions of law.
Findings will only be set aside if they are clearly erroneous.
Findings are clearly erroneous only when the record contains no facts
to support them either directly or by inference. A judgment is
clearly erroneous if it applies the wrong legal standard to properly
found facts. In order to determine that a finding or conclusion is
clearly erroneous, an appellate court’s review of the evidence must
leave it with the firm conviction that a mistake has been made.
Estate of Skalka v. Skalka, 751 N.E.2d 769, 771 (Ind. Ct. App. 2001)
(quoting Bronnenberg v. Estate of Bronnenberg, 709 N.E.2d 330, 333 (Ind.
Ct. App. 1999)).
On the other hand, Marie asserts that Co-Personal Representatives
appeal from a negative judgment, i.e. the denial of their objection to her
election to take against the will. In an appeal from a negative judgment,
the appellate court will reverse only if the evidence viewed most favorably
to the trial court leads incontrovertibly to a conclusion contrary to the
one reached below. Beatty v. Beatty, 555 N.E.2d 184, 186 (Ind. Ct. App.
1990). After reviewing the record before us, we conclude neither party’s
suggested standard of review is appropriate.
The trial court’s order, entitled Memorandum of Law, cites case law
upon which it relies for its decision, generally summarizes certain hearing
testimony, and denies the Co-Personal Representatives’ objection to Marie’s
election to take against the will. Appellants’ Appendix at 5. It does not
purport to enter findings of fact or conclusions of law; thus, the standard
of review proposed by Co-Personal Representatives is inapplicable.
That proposed by Marie is likewise inapposite. Prior to the start of
the hearing on Co-Personal Representatives’ objection, the parties
discussed on the record the matter of who carried the burden of proof. The
parties agreed, and the court approved, that the initial burden was on Co-
Personal Representatives to prove that an antenuptial agreement existed,
and the burden then shifted to Marie to prove that the agreement was
invalid. Id. at 37-39. See also Matuga v. Matuga, 600 N.E.2d 138, 141
(Ind. Ct. App. 1992), trans. denied (citing Matter of Estate of Palamara,
513 N.E.2d 1223, 1226 (Ind. Ct. App. 1987) (party who petitions to
invalidate antenuptial contract generally bears burden of establishing
invalidity by preponderance of evidence)). Here, Co-Personal
Representatives established the existence of an antenuptial agreement, the
matter on which they carried the burden of proof. Thus, they are not
appealing from a negative judgment. Rather, they are appealing an
unfavorable ruling, which determined that Marie successfully established
the invalidity of the antenuptial agreement.
Accordingly, we view the trial court’s decision as a general
judgment. A general judgment will be affirmed if it can be sustained upon
any legal theory consistent with the evidence. Bedree v. Bedree, 747
N.E.2d 1192, 1197 (Ind. Ct. App. 2001), trans. denied. See also Foman v.
Moss, 681 N.E.2d 1113, 1116 (Ind. Ct. App. 1997) (In reviewing general
judgments issued in a civil case tried to the bench, we ask only whether
there is substantial evidence of probative value supporting the judgment on
any legal theory.). In making this determination, we neither reweigh the
evidence nor judge the credibility of witnesses; rather, we consider only
the evidence most favorable to the judgment together with all reasonable
inferences to be drawn therefrom. Bedree, 747 N.E.2d at 1197; Foman, 681
N.E.2d at 1116.
II. Nature of Antenuptial Agreements
Antenuptial agreements are legal contracts by which parties entering
into a marriage relationship attempt to settle the interest of each party
in the property of the other during the course of the marriage and upon its
termination by death or other means. Hunsberger v. Hunsberger, 653 N.E.2d
118, 125 (Ind. Ct. App. 1995), trans. denied (1996) (citing In Re Marriage
of Boren, 475 N.E.2d 690, 693 (Ind. 1985)); Beatty, 555 N.E.2d at 187. The
interpretation of a contract is primarily a question of law for the court,
even if the instrument contains an ambiguity needing resolution. Bressler
v. Bressler, 601 N.E.2d 392, 395 (Ind. Ct. App. 1992). Thus, on appeal,
our standard of review is essentially the same as that employed by the
trial court. Id. Antenuptial agreements are to be construed according to
principles applicable to the construction of contracts generally. Id.
(citing DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind. Ct. App. 1991),
trans. denied (1992)). If the language of the instrument is unambiguous,
the intent of the parties must be determined from its four corners. Id.
Antenuptial agreements are favored by the law as promoting domestic
happiness and adjusting property questions that otherwise would often be
the source of litigation. Hunsberger, 653 N.E.2d at 125. Antenuptial
agreements, so long as they are entered into freely and without fraud,
duress, or misrepresentation and are not, under the particular
circumstances of the case, unconscionable, are valid and binding. Id. at
125; Palamara, 513 N.E.2d at 1229.
III. Statutory Rights of Surviving Spouse and Waiver Thereof
In Indiana, surviving spouses hold certain statutory rights upon the
death of their spouse. One such right is known as a spousal allowance and
is found at IC 29-1-4-1, which, when Terry died in 2000, entitled a
surviving spouse to an allowance of fifteen thousand dollars from their
deceased spouse’s estate. A surviving spouse may also elect to take
against the provisions of the deceased spouse’s will under IC 29-1-3-1(a),
which provides in pertinent part:
When a married individual dies testate as to any part of the
individual’s estate, the surviving spouse is entitled to take against
the will under the limitations and conditions stated in this chapter.
. . . [I]f the surviving spouse is a second or other subsequent
spouse who did not at any time have children by the decedent and the
decedent left surviving a child or children or the descendants of a
child or children by a previous spouse, the surviving second or
subsequent childless spouse shall upon such election take one-third
(1/3) of the net personal estate of the testator plus a life estate in
one-third (1/3) of the lands of the testator.
Those statutory rights, however, are not inviolate and may be waived.
IC 29-1-2-13 provides for the waiver of the expectancy of a surviving
spouse’s allowance. It states in pertinent part:
The intestate share or other expectancy to which the spouse . . . is
entitled may be waived at any time by a written contract, agreement or
waiver signed by the party waiving such share of expectancy. The
promise of marriage, in the absence of fraud, is sufficient
consideration in the case of an agreement made before marriage. In
all other cases such contract, an agreement or waiver is binding upon
the parties to the agreement if executed after a full disclosure of
the nature and extent of such right[.]
IC 29-1-3-6 governs a surviving spouse’s waiver of the right to take
against the will. Its language is similar to IC 29-1-2-13, above, and
states in pertinent part:
The right of election of a surviving spouse . . . may be waived before
or after marriage by a written contract, agreement or waiver, signed
by the party waiving the right of election, after full disclosure of
the nature and extent of such right . . . .
An antenuptial agreement may suffice to waive the statutory election.
Russell v. Walz, 458 N.E.2d 1172, 1179 (Ind. Ct. App. 1984) (citing Estate
of Gillilan v. Estate of Gillilan, 406 N.E.2d 981, 989-91 (Ind. Ct. App.
1980)). See also Beatty, 555 N.E.2d at 188 (quoting Russell, 458 N.E.2d at
1180) (valid antenuptial agreements are enforceable to raise claims or bar
claims waived by the agreement)).
Here, the antenuptial agreement provided, in relevant part:
WHEREAS, the Parties desire and intend to define their
respective rights in the property of the other, both during the
marriage relationship and after its termination, and to avoid such
interests which, except for the operation of this Agreement, each
might acquire in the property of the other as incidents of their
marriage relationship; and
WHEREAS, each party desires that his or her respective property,
both real and personal, shall pass to his or her respective children
or designated heirs;
IT IS THEREFORE AGREED:
. . . .
WAIVER OF ELECTION AND EXPECTANCY
3. Each Party hereby renounces, releases, and remises all
rights as surviving spouse, heir, distributee, survivor, or next of
kin, whether by common law or by statute, state or federal, now in
effect or hereafter enacted, or otherwise, to all claim and interest
in the property and estate of the other Party, including but not
limited to, rights to dower, curtesy, or statutory substitute
therefore (whether inchoate or otherwise), election against will,
distributive share, or life insurance.
. . . .
REPRESENTATION BY INDEPENDENT COUNSEL
11. The Parties do hereby admit and acknowledge that each has
been advised to be represented by independent counsel, and that
Michael C. Murphy represents the Wife; and that the Agreement has been
read by the Parties and that they understand its meaning and legal
Appellants’ Appendix at 13-15.
Marie asserts that despite the express language in the agreement
indicating waiver of all rights to the other’s property, whether existing
then or in the future, whether created by statute or otherwise, she did not
know what rights she was waiving. While Murphy did not specifically
discuss with Marie the existence of the spousal allowance under IC 29-1-4-
1, the elective distributive share under IC 29-1-3-1, or the monetary value
of either, he did apprise Marie of the consequences of executing the
I explained to Marie by signing the pre-nuptial agreement her assets
would remain her’s [sic], Mr. Boetsma’s would remain his, and unless
they did something such as name one another in a will, create joint
property, make gifts or something similar, that they had no rights at
anytime, either now or in the future, against the property of the
Id. at 51. On cross-examination, he repeated the explanation he had given
No, it was more than a general discussion. It was a statement that I
have already testified to that once the pre-nuptial was signed that
she could not expect anything from Mr. Boetsma either currently or in
the future unless he did certain things, such as, will, joint
ownership, gift, et cetera.
Id. at 60. Nevertheless, Marie asserts on appeal that the antenuptial
agreement is invalid to waive her statutory rights because the specific
nature and extent of the rights she was waiving were never disclosed to
In support of her position, Marie relies upon Bohnke v. Estate of
Bohnke, 454 N.E.2d 446 (Ind. Ct. App. 1983), in which a widow brought an
action against her deceased husband’s estate for rescission of an
instrument in which she waived her statutory survivor’s allowance and her
right to take against her husband’s will. The parties, Frank and Candace,
were both in their eighties, met in a nursing home, and married. Before
marrying, they had orally agreed that their estates would pass to their
respective children and that neither would make any claim on the other’s
estate; such discussions were held more than once in the presence of
Frank’s family. After Frank died, Frank’s son asked Candace to sign an
instrument entitled “Waiver of Right to Elect to Take Against Will,” the
language of which stated:
I have been fully informed as to my rights in the estate of my
deceased husband, Frank E. Bohnke, and as to the provisions of I.C. 29-
1-3-1 and my right to survivor’s allowances as provided in I.C. 29-1-4-
Id. at 449. The son did not explain the Waiver’s contents or implications
to Candace, who read and signed the Waiver later that day. Subsequently,
Candace sought advice from an attorney, who filed a petition to revoke
Candace’s waiver. The trial court denied her petition. This court
reversed, finding Candace’s waiver of her statutory rights was not based on
a full disclosure of the rights waived. Although the text of the waiver
mentions the relevant statutory provisions, the reviewing court concluded
that the “allusion to Candace’s statutory rights hardly constitutes a
disclosure of the nature of those rights.” Id. See also Estate of Calcutt
v. Calcutt, 576 N.E.2d 1288, 1292 (Ind. Ct. App. 1991), trans. denied
(1992) (following Bohnke, court held surviving husband did not waive
statutory right to survivor’s allowance where antenuptial agreement made no
provision for disposition of property after death, did not mention
survivor’s allowance, and no evidence existed that surviving spouse
received any disclosure of such right); Estate of Edington v. Edington, 489
N.E.2d 612, 615-16 (Ind. Ct. App. 1986) (citing Bohnke, court held that
surviving wife did not receive full disclosure of her statutory rights
under either alleged antenuptial agreement, the existence of which was not
supported by credible evidence, or in wills that each executed that left
all property to that party’s respective children).
We find Bohnke distinguishable from the present case in several
respects. Here, the plain language of the antenuptial agreement stated
that Marie was waiving her right “to all claim and interest in the property
and estate of the other Party[.]” Appellants’ Appendix at 14. It did not
merely reference code sections or the term spousal allowance, as did the
Waiver in Bohnke, but instead expressly stated that she was waiving her
right to receive anything whatsoever from her husband’s estate.
Additionally, in the present case Marie contacted the attorney to prepare
the document, had the document in her possession for several days prior to
its execution, and was advised by the attorney that by signing the
agreement she was waiving all rights to Terry’s property both now and in
the future. In contrast, the widow in Bohnke was contacted by the
decedent’s son, who asked her to execute the Waiver, but did not explain to
her the consequences of signing the document. Nor did the widow in Bohnke
have the opportunity to receive legal advice, as she signed the waiver the
same day it was presented to her. Lastly, we observe that Marie’s
testimony evidenced an understanding that by signing the agreement she was
waiving all rights in Terry’s property, other than the house in which they
had resided, which Terry devised to her in his will. Appellants’ Appendix
at 103, 105-06, 108.
We believe that this court’s subsequent decision in Beatty is more
applicable and more persuasive than Bohnke. In Beatty, a husband claimed a
widower’s allowance in his deceased wife’s estate. The couple had signed
an antenuptial agreement whereby they had each waived their rights to
participate in the estate of the other. The agreement stated in pertinent
Upon the death of either of the parties hereunto . . . neither party
shall have any claim, right, title or interest in or to the estate of
the other. It is the intention of the parties that each waives his or
her respective right to share or elect to participate in the estate of
the other, to any and all support, maintenance or other rights flowing
from the marriage, and to every other interest of whatsoever kind or
nature to which he or she might subsequently become entitled in and to
the estate of the other.
Beatty, 555 N.E.2d at 186. The trial court upheld the husband’s claim,
concluding that husband could not have waived the statutory allowance
because at the time the agreement was made the statutory right to a
widower’s allowance did not yet exist. On appeal, we reversed and held
that the language of the antenuptial agreement waived the husband’s
statutory right to a survivor’s allowance, even if the right arose after
the agreement was executed. This court observed that although husband was
not “aware” of the survivor’s allowance, because the statute permitting it
to a widower did not yet exist, the husband “was aware that he was waiving
‘every other interest of whatsoever kind or nature to which he . . . might
subsequently become entitled’ to in [his wife’s] estate.” Id. at 188. We
believe that Marie likewise was aware that by executing the agreement she
was waiving any and all rights to any interest in her husband’s estate.
In reaching the decision that husband had waived his right to the
statutory allowance, the Beatty court also considered the parties’ intent
based upon the language of the agreement, which provided:
Neither of us is acting under any compulsion or restraint but is
motivated by a good faith desire to maintain our independent estates
for the sole enjoyment of our respective descendants.
Id. at 188. The court inferred from this language that the parties
intended to waive all rights to share in the estate of the other in order
to preserve their independent estates for the sole enjoyment of their
respective children. Id. Marie and Terry expressed the same intent in
their agreement, which stated, “[E]ach Party desires that his or her
respective property, both real and personal, shall pass to his or her
respective children or designated heirs.” Appellants’ Appendix at 13.
“‘Antenuptial agreements are favored by the law and will be liberally
construed to effect, so far as possible, the parties’ intentions.’”
Beatty, 555 N.E.2d at 188 (quoting Russell, 458 N.E.2d at 1179).
Considering the language of the antenuptial agreement, and specifically the
broad language waiving all rights to the other party’s estate and the
parties’ expressed intent to pass all separate property to each party’s
heirs, we conclude that she waived her statutory rights when she executed
the antenuptial agreement. To the extent that Bohnke and its progeny
require a contrary result or are otherwise inconsistent with this opinion,
we decline to follow those cases.
SULLIVAN, J., and ROBB, J., concur.
 Murphy was out of town on a preplanned vacation, and another
attorney from his law firm was present at the hospital in his absence.
 The legislature amended the statute in 2001 and increased the
allowance to twenty-five thousand dollars.