Taxation & Estate Planning

Bill Murray's Pre-nup: Florida Adopts the Uniform Premarital Agreement Act

By Juan C. Antúnez

Slate recently reported here on Bill Murray's brewing divorce. From a practitioner's standpoint I was especially interested to find excerpts of original source documents - including Murray's prenuptial agreement - reproduced in the Slate post. Here's an excerpt:

Days before their 1997 wedding ceremony, comedian Bill Murray and his wife, Jennifer Butler Murray, entered into a 26-page antenuptial agreement (excerpted below and on the following four pages). "Jennifer … is aware that Bill is a person of very substantial means and income," the document said (Page 2). The agreement stipulated that Murray would "continue to retain all right title and interest … to all separate property he may now own or hereafter acquire" (Page 3). As a wedding present, Bill agreed to buy his bride a modest house ("not exceeding one million dollars") of her own ("title … taken in Jennifer's sole name"—Page 5). In the "event of marital discord," Jennifer would relinquish her rights to alimony (Page 4) and instead receive within 60 days of the marriage's dissolution a lump-sum "marital award" of $7 million (Page 5).

I don't do divorce litigation, but I do draft marital agreements as part of my practice. The Murray piece underscored for me how high the stakes can be when you work on a pre-nup. Fortunately, Florida recently adopted the Uniform Premarital Agreement Act (UPAA) at F.S. 61.079 (like that segway from celebrity divorce to Florida statutory reference?).  In a recent Florida Bar Journal article entitled The Uniform Premarital Agreement Act: Taking Casto to a New Level for Prenuptial Agreements, Florida divorce attorney Doreen Inkeles described the likely impact on this new legislation on the enforceability of pre-nuptial agreements as follows:

Ultimately, it would appear that prenuptial agreements will be harder to set aside under the act. If one cannot establish fraud, duress, or overreaching, which are hard enough to prove, the need to prove unconscionability catapults what had previously been an “unfair or unreasonable” standard into the stratosphere where the circumstances must be “shockingly unfair” and “excessively unreasonable.” And the elements of lack of financial disclosure/lack of knowledge must also accompany the unconscionability claim. The act reflects Florida’s policy which does not prohibit persons from making hard bargains or entering into unfair agreements, as long as they do it voluntarily, of their own free will, and with at least an approximate knowledge of what they are giving up.

.  .  .  .  .

Combined with the apparently more stringent standards set forth in the UPAA, parties will have second thoughts about testing the enforceability of their agreements now that the Florida Supreme Court has recognized the enforceability of prevailing party attorneys’ fee provisions contained in prenuptial agreements which would place liability on the impecunious spouse for the already dominant spouse’s attorneys’ fees should the agreement be upheld.

Blogging credit:

Credit goes to Chicago probate attorney Joel A. Schoenmeyer for bringing the Slate piece to my attention in this post on his Death & Taxes Blog.

Full post as published by Florida Probate Litigation Blog on June 06, 2008 (boomark / email).