Maine Supreme Judicial Court Reports

ESTATE OF BARROWS, 2006 ME 143 ESTATE OF TIMMY L. BARROWS.
Docket: Wal-06-120. Supreme Judicial Court of Maine.
Argued: September 21, 2006. Decided: December 19, 2006.

Attorney for appellant: Roger J. Katz, Esq., Keith R.
Varner, Esq. (orally), Lipman, Katz & McKee, P.A., Augusta,
ME 04332.

Attorneys for appellee: Michael L. Shehan, Esq., Timothy J.
Bryant, Esq. (orally), Jonathan G. Mermin, Esq., Preti
Flaherty Beliveau Pachios & Haley LLC, Portland, ME
04112-9546.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER,
CALKINS, LEVY, and SILVER, JJ.

CLIFFORD, J.

[¶ 1] Kelene Barrows appeals from a judgment entered
in the Waldo County Probate Court (Longley, J.) granting a
petition by the personal representative, Tommy Barrows, to
enforce a prenuptial agreement between Kelene and the
decedent, Timmy L. Barrows, and denying Kelene’s petition
for an elective share of Timmy’s estate as his surviving
spouse pursuant to 18-A M.R.S. § 2-201 (2005).
Kelene contends that the court erred in interpreting the
language of the prenuptial agreement to apply in the event
of death, as well as divorce, and to be an effective waiver
of her elective share pursuant to 18-A M.R.S. §
2-204 (2005). Because we conclude that the agreement is
ambiguous, and that the court should look to extrinsic
evidence to help construe the agreement, we vacate the
judgment, and remand for further proceedings.

I. BACKGROUND

[¶ 2] On September 10, 1997, prior to their marriage
on September 12, 1997, Kelene and Timmy signed a prenuptial
agreement. The parties stipulate that the agreement was
valid when it was signed, neither party was under duress,
it was signed voluntarily, without fraud, it was not
unconscionable, Timmy fairly disclosed his assets to Kelene,
and Kelene waived her opportunity to have independent
counsel advise her with respect to the agreement. In May of
2003, Timmy executed a last will and testament. He died in
February of 2004.

[¶ 3] The prefatory clauses of the prenuptial
agreement relevant to Kelene’s petition for an elective
share are as follows:

WHEREAS, a marriage between the parties is intended
following signature of this Agreement and the parties
desire to fix and determine by this Agreement their mutual
property rights and obligations during the marriage, in
the event of their divorce, or upon the death of either
of them.

. . . .

NOW, THEREFORE, in consideration of the intended marriage
and of the covenants and agreements herein contained, the
parties, intending and agreeing that this Agreement shall
be binding upon and inure to the benefit of themselves,
their respective legal representatives, heirs and assigns,
do hereby agree as follows:

(Emphasis added.)

[¶ 4] The first provision of the agreement, defining
the rights and obligations of the parties[fn1] provides:

1. ESTATE OF MR. BARROWS.

(1) The following properties belonging to Mr. Barrows
before the marriage, shall be and remain his separate
non-marital property, including without limitation any
increase in value of such properties after the date of the
marriage:

A. Any and all interest including but not limited to his
stock in Bob Barrows, Inc. [an automobile dealership.]

B. His interest in the land and buildings located in
August[a], Kennebec County, State of Maine . . . and
acquired jointly with his brother, Tommy L. Barrows on or
about June 6, 1987.

C. His IRA account located at Gardiner Savings
Institution. . . .

In addition, all property acquired by Mr. Barrows
subsequent to the marriage, including but not limited to,
property acquired by gift, bequest, devise, or descent,
all property acquired in exchange for property acquired
by gift, bequest, devise, or descent, and all property
acquired by Mr. Barrows after an agreement of legal
separation, including without limitation, any increase in
value of such property, shall be and remain his personal
estate and constitute non-marital property pursuant to
19 M.R.S.A. Section 722-A.

[¶ 5] Affidavit A[fn2] applies to, and was signed
by, Kelene, and provides in part:

2. Prior to the execution of said Agreement, I have
waived the right to have an attorney explain to me the
rights of a husband to the property of his wife and the
rights of a wife to the property of her husband, during
marriage, in the event of a divorce, and after death, and
to have an attorney explain to me the effect of the
attached Agreement on all of those rights.

[¶ 6] Affidavit B, signed by Timmy’s attorney who
drafted the agreement, provides in part:

2. Prior to the execution of the attached Prenuptial
Agreement, I explained to Mr. Barrows, who signed the
same, the rights of a husband to the property of his wife
and the rights of a wife to the property of her husband,
during marriage, in the event of divorce, and after death,
and I also explained the effect of the attached
Agreement on all those rights.

[¶ 7] In May of 2004, Kelene petitioned the
Kennebec County Probate Court for formal adjudication of
intestacy and appointment of herself as personal
representative, as Timmy’s spouse, for formal adjudication
of intestacy only. Tommy then filed a petition for formal
probate of the will and for appointment of himself as
personal representative, as the individual named in
Timmy’s will. Kelene agreed to consent to admission of the
will and to the appointment of Tommy as personal
representative, provided that the administration was
supervised.

[¶ 8] Kelene filed a petition for elective share,
indicating that the values of the probate and augmented
estates were unknown. The court ordered formal, supervised
probate, appointing Tommy as the personal representative.
Tommy, in his capacity as the personal representative, then
filed an objection to Kelene’s petition for elective share,
contending that pursuant to the prenuptial agreement, Kelene
has no interest in Timmy’s stock holdings in Bob Barrows
Chevrolet, Inc. or the related real estate, which passes to
Tommy under the will, and that the “augmented estate,”
“exclusive of property passing to [Kelene] by reason of
[Timmy’s] death or previously transferred to [Kelene], is
limited to the Dealership Property.”

[¶ 9] The case was transferred to the Waldo County
Probate Court. The court held a hearing, consisting solely
of attorney arguments with no testimony, on the issue of
Kelene’s petition for an elective share and the
corresponding petition by the estate to enforce the
prenuptial agreement and deny the elective share. Following
the hearing, the parties filed briefs with the court in
support of their respective positions. Kelene argued that
the language in the agreement was not effective as a waiver
of her elective share. The estate contended that the
agreement was valid and applied upon the death of Timmy.

[¶ 10] The court issued an order, granting the
personal representative’s petition to enforce the
prenuptial agreement, and denying Kelene’s petition for an
elective share, finding from the language of the agreement
and the attached affidavits that the intent of the parties
was that the agreement “be [e]ffective also upon the death
of either party.” The court made no express ruling on
Kelene’s contention that even if the agreement is effective
upon death, the language is insufficient to constitute a
waiver of Kelene’s elective share pursuant to 18-A M.R.S.
§ 2-204. Kelene filed this appeal.

II. DISCUSSION

[¶ 11] Each party contends that the plain language
of the prenuptial agreement is unambiguous and favors his
or her interpretation. Kelene contends that the operative
language of the contract in the seven numbered sections
refers only to divorce or legal separation and “[does] not
provide for what happens to the property in the event of the
death of a party.” The estate argues that the prefatory
language is part of the contract and should not be rendered
meaningless by interpreting the agreement to not apply upon
the death of the parties. Kelene further argues that, even
if the agreement is applicable upon the death of either
party, the language is insufficient to constitute an
effective waiver of her statutory right to an elective
share of Timmy’s estate pursuant to 18-A M.R.S. §
2-204.

A. Applicability of the Prenuptial Agreement on Death

[¶ 12] The Court “review[s] de novo the
interpretation of documents when the trial court finds no
ambiguity in the documents and declines to take extrinsic
evidence.” In re Ross Family Trusts, 2002 ME 89, ¶
5, 797 A.2d 1268, 1269-70. Whether language in a contract
is ambiguous is a question of law that is reviewed de novo.
Lee v. Scotia Prince Cruises, Ltd., 2003 ME 78, ¶ 9,
828 A.2d 210, 213. Language is ambiguous when it is
reasonably susceptible to different interpretations. Acadia
Ins. Co. v. Buck Constr. Co., 2000 ME 154, ¶ 9, 756
A.2d 515, 517. “If the language of the contract is
ambiguous, however, its interpretation is a question of
fact for the factfinder.” Id. ¶ 8, 756 A.2d at 517.

[¶ 13] “It is a well established principle that a
contract is to be interpreted to give effect to the
intention of the parties as reflected in the written
instrument, construed in respect to the subject matter,
motive and purpose of making the agreement, and the object
to be accomplished.” Foster v. Foster, 609 A.2d 1171, 1172
(Me. 1992). We have long recognized that “canons of
construction require that a contract be construed to give
force and effect to all of its provisions, and we will
avoid an interpretation that renders meaningless any
particular provision in the contract.” Farrington Owners’
Ass’n v. Conway Lake Resorts, Inc., 2005 ME 93, ¶
10, 878 A.2d 504, 507 (quotation marks omitted). Even
though courts look to the “entire instrument when
construing the contract,” we have held that “broad language
contained in an introductory paragraph does not expand the
actual settlement provisions of an agreement.” Ackerman v.
Yates, 2004 ME 56, ¶¶ 10, 12, 847 A.2d 418,
422-423.

[¶ 14] In a similar case, in determining that a wife
did not waive her right to an elective share or other
rights in the estate of her husband through a prenuptial
agreement, we stated: “The central fact is that this
agreement contains no waiver whatsoever of the rights of one
spouse at the death of the other. In no way does it speak
of death.” Estate of Berzinis, 505 A.2d 86, 86 (Me. 1986)
(emphasis added). By contrast, where “[a]ll of the numbered
paragraphs [in a prenuptial agreement] deal[t] with
plaintiff’s rights as widow of defendant, and use[d] terms
such as dower, distributive share, and descent” we concluded
that the broad language in the prefatory “whereas” clauses
did not expand the actual settlement provisions of the
contract to apply to marital property rights in the event
of divorce. Foster, 609 A.2d at 1172.

[¶ 15] Unlike the prenuptial agreement in Berzinis,
505 A.2d at 86, the agreement in this case does “speak of
death.” Specifically, the prefatory language in the
“whereas” clause of the contract indicates by its plain
language that “the parties desire to fix and determine by
this Agreement their mutual property rights and obligations
during the marriage, in the event of their divorce, or upon
the death of either of them.” (Emphasis added.) The
numbered provisions, which fix the rights and obligations
of the parties, are labeled “Estate of. . . .” and state
that all property acquired by either party during the
marriage or after an agreement of legal separation “shall
be and remain his [or her] personal estate and constitute
non-marital property pursuant to 19 M.R.S.A. Section
722-A.” Despite the fact that the prefatory clause states
that the parties desire to fix their mutual property rights
and obligations upon the death of either of them, none of
the provisions that actually speak to the disposition of
property explicitly reference death. They refer
specifically to “non-marital property,” a term of art
relating to property rights upon legal separation or
divorce, and each cite to former 19 M.R.S.A. §
722-A, which governed property rights upon divorce and
annulment. They do not cite to the probate code.

[¶ 16] The word “estate,” used in the substance of
the agreement, can be construed as fixing the parties’
rights upon the death of either of them, when read in
combination with the prefatory language. The estate does
not dispute that the word “estate” can refer to both
property of a decedent as well as property belonging to a
living person. Thus, the fact that the recitals, which
follow the heading “Estate of MR. BARROWS,” are couched in
language often used in divorce or legal separation
proceedings, is not dispositive in and of itself.

[¶ 17] Another reasonable interpretation of the
agreement would place emphasis on the word “and” in the
phrase in the agreement that provides: “shall be and remain
his [or her] personal estate and constitute non-marital
property pursuant to 19 M.R.S.A. Section 722-A.” This gives
rise to a second, reasonable alternative reading of the
agreement under which it could be construed to mean that
the property is to remain as part of Timmy’s estate upon
his death and upon divorce.

[¶ 18] Because the language in the prefatory clause
and the reference to death in the affidavits creates an
ambiguity that cannot be resolved from the four corners of
the document, and should be resolved by the taking of
extrinsic evidence, we remand for hearing and admission of
extrinsic evidence and factual findings on this issue. See
Farrington Owners’ Ass’n, 2005 ME 93, ¶ 10, 878 A.2d
at 507.

B. Waiver of the Statutory Right to Elective Share

[¶ 19] Kelene’s additional contention is that even
if the prenuptial agreement is construed to apply upon the
death of either party, she is still entitled to an elective
share of the augmented estate pursuant to 18-A M.R.S.A.
§ 2-201, because the language in the contract does
not constitute an effective waiver of her statutory right
pursuant to 18-A M.R.S. § 2-204. This is so, Kelene
contends, because the agreement “does not use the word
`waive,’ does not mention the elective share, and does not
use any words waiving `all’ or `any’ rights that Kelene may
have.” The estate argues that the waiver of the right to an
elective share or of “all rights” in the property of a
prospective spouse need not be explicit, and that by
agreeing that the property at issue shall be and remain
Timmy’s personal estate and constitute non-marital
property, Kelene waived her right to claim a share of that
property upon Mr. Barrows’ death.

[¶ 20] Pursuant to 18-A M.R.S. § 2-204, a
spouse can waive the right to an elective share through a
prenuptial agreement as follows:

The right of election of a surviving spouse . . . may be
waived, wholly or partially, before or after marriage, by
a written contract, agreement or waiver signed by the
party waiving after fair disclosure. Unless it provides to
the contrary, a waiver of “all rights,” or equivalent
language, in the property or estate of a present or
prospective spouse . . . is a waiver of all rights to
elective share . . . by each spouse in the property of the
other. . . .

[¶ 21] The agreement does not mention elective share
or a waiver of “all rights.” The agreement specifically
lists property held by Timmy prior to the marriage,
including the Dealership Property, which “shall be and
remain [Timmy’s] separate non-marital property” and then
states that “all property acquired by [Timmy] subsequent to
the marriage . . . shall be and remain his personal estate
and constitute non-marital property pursuant to 19 M.R.S.A.
Section 722-A.” This clause stating that “all property”
acquired by Timmy after the marriage is to “remain his
personal estate and constitute non-marital property” could
be construed as satisfying the waiver provision in 18-A
M.R.S. § 2-204, because pursuant to the statute,
unless the agreement provides otherwise, a “waiver of `all
rights,’ or equivalent language in the property or estate
of a present or prospective spouse . . . is a waiver of all
rights to elective share.” (Emphasis added.)

[¶ 22] The specific references in the agreement to
“non-marital property” and to section 722-A of former title
19, the specific statutory provision governing property
upon divorce, creates a question as to whether the waiver
applies to an elective share. The Probate Court should
consider extrinsic evidence to determine whether the
parties intended the phrase “shall be and remain his
personal estate” to mean Timmy’s estate upon his death. If
so, then the provision can be construed as an effective
waiver of the elective share through the use of “equivalent
language” because it effectively constitutes a waiver of
rights in all of Timmy’s property, even though it does not
specifically use the word “waive.”

[¶ 23] Because the contract language is ambiguous
with respect to its applicability upon the death of a
party, we remand for the court to consider extrinsic
evidence relevant to the intention of the parties as to the
applicability of the agreement upon death, as opposed to
upon divorce or separation, and whether the agreement was
intended to be a waiver of the spousal elective share.

Judgment vacated. Remanded to the Probate Court for further
proceedings consistent with this opinion.

[fn1] The agreement contains a second reciprocal enumerated
section with nearly identical language, which pertains to
Kelene.

[fn2] Kelene disputes whether the two affidavits are part of
the agreement.