Perspectives: Taylor-Travis marriage recalls prenup laws here

In Brief:

• Minnesota amended Minn. Stat. §519.11 effective August 1, 2024
• Supreme Court cases McKee-Johnson and Kremer shaped prenuptial standards
• New law applies to marital and nonmarital property in prenups
• Postnuptial agreements presumed unenforceable within two years of separation

A day after the long-awaited marriage of singer-songwriter Taylor Swift and Kansas City Chiefs tight end Travis Kelce a month ago, the New York Times published a story on the front page of its business section speculating about the uber-celebrity couple’s prenuptial agreement, noting her estimated net worth of $2.1 billion and his estimated $90 million, which is nothing to scoff at.

While calling upon three “legal experts” to discuss the law of antenuptial arrangements in New York, where the marriage occurred at Madison Square Garden, the article had to rely on their conjecture, as there was no formal or official delineation of the arrangement, if any, they entered into in advance of their gala July 3 ceremony.

The guessing-game over whether an agreement may exist and its terms calls attention to how the law of prenuptials, sometimes referred to as antenuptials, is addressed here in Minnesota, a state with some ties to the couple. Swift performed in a pair of sold-out concerts at U.S. Bank Stadium in June 2023, the third time she had played to sold-out crowds in the two Twin Cities, even having a day announced in her honor by Gov. Tim Walz and by the city of Minneapolis for her latest endeavor. Kelce played here for the Chiefs three months after Swift’s two 2023 concerts in a 27-20 victory over the Vikings, catching the deciding touchdown pass for the defending Super Bowl champions on their way to a repeat NFL title.

The Swift-Kelce marriage a month ago today provides an opportune occasion to review how any prenuptial they have might fare in this state of their passing contacts.

Prenuptial permutations

Prenuptial law has been topsy-turvy in Minnesota for decades, marked by many different permutations.

While favored in the law, prenuptial agreements were not subject to state statute until 1979. Prior to that time, their execution and enforceability were governed by common law court rulings that generally focused on advance disclosure, independent counsel for both parties, and fairness.

In 1979, the Legislature stepped in to provide guidance by enacting Minn. Stat. §519.11. Drawing upon prior case law, it focused on those features in arrangements defining the rights of parties in a marital dissolution proceeding or in probate proceedings.

Referencing “nonmarital property,” the statute providing for “full and fair disclosure of the current income and property of each party” required an opportunity for each to consult with their own counsel, and have it signed before two witnesses and notarized.

But the law eventually met turbulence as a result of two Supreme Court decisions 29 years apart. The first one was McKee Johnson v. Johnson, 444 N.W.2d 259 (Minn. 1989), which involved a prenuptial of a wealthy farm couple from Fulda in the southwestern part of the state, the home of superb Star Tribune sports columnist Pat Reusse, who often speaks of it proudly from his office and remote home in Golden Valley, the home territory of this writer. The Fulda case established a three-pronged mixture of procedural and substantive standards for determining enforceability of these agreements:

1. The procedural fairness in accordance with the statutory standards.
2. The substantive fairness at the time of execution.
3. Its fairness when sought to be enforced.

It was presumed by the terminology in the statute and the Mckee-Johnson case that the measure applied to all prenups.

Wrong!

In 2018, in Kremer v. Kremer, 827 N.W.2d 454 (Minn. 2018), the Supreme Court held that the combined statutory and McKee-Johnson standards applied only to agreements relating to nonmarital proposals, not to be confused with the 1979 movie “Kramer vs. Kramer,” the Academy Award winning film that year with an Oscar for Dustin Hoffman as best actor divorcing from Meryl Streep.

The Kremer case provided that agreements concerning only marital property acquired during the marriage were to be governed by the pre-statutory case law; in effect, the decision construed Minn. Stat. §519.11 to apply only to property the parties obtained prior to the marriage, or gifts during it and not to property acquired by either party or both during the course of the marital relationship.

“One should always be in love. That is the reason one should never marry.”
Oscar Wilde (1854-1900)

*****

“Marriage is a wonderful institution, but who wants to live in an institution?”
Groucho Marx (1890-1977)

*****

“Marriage has no guarantees. If that’s what you’re looking for, go live with a car battery.”
Humorist Erma Bombeck (1927-1996)

Perspective Problem: How many first marriages in the United States end in divorce?

Marital mess

A marital mess emerged, requiring a two-tiered approach for execution, litigation, and enforcement of antenuptial agreements: a “marital property” analysis and a separate one for “nonmarital aspects.”

The Mckee-Johnson case seemed to clash with the statutory implication that nonmarital property is covered by the statutory provision.

A statutory solution arose in 2024 with an amendment of Minn. Stat. §519.11 aimed at alleviating the antenuptial angst, which went into effect two years ago, Aug. 1, 2024.

The new law stitches together the two cases, McKee-Johnson and Kremer, and applies them to all arrangements entered into after that date for both marital and nonmarital property alike.

Substantively, the measure reiterates existing law that marriage constitutes adequate consideration to support an antenuptial agreement and calls for balancing the interests of the respective parties.

As revised, the statute specifically embraces “nonmarital and marital” property, reiterates the case law that marriage is adequate consideration for agreement, and applies a “good faith” standard for estimating the value of the respective properties. The basis for that determination may not be waived and requires that the deal is entered into at least a week before the marriage, “voluntarily and free of duress.”

The statute also calls for the agreement to be “substantively fair,” which is to be determined by a court without a jury, and may be set aside if the arrangement is “unconscionable by its terms” or due to “drastically changed circumstances” that were not foreseen at the time it was executed and, as a result, no longer “comports with the reasonable expectations of the parties” when they signed it.

But the statute makes prenup agreements difficult to successfully overcome by imposing a presumption of validity and places the burden on the challenger.

The law also authorizes postnuptial agreements, 519.11 Subd. 1d, subject to the same standards as amending a prenup or revoking it. But a postnuptial is presumed to be unenforceable if a legal separation or marital dissolution proceeding is commenced within two years unless the proponent proves it is “fair and equitable.”

Meanwhile, case law still provides basis for determination of the validity, valuation, and enforcement of antenuptial arrangements.

Probate pair

A pair of prenuptial cases from St. Louis County and another from Greater Minnesota went through the probate process in claims involving decedents.

In In re Estate of Aspenson, 470 N.W.2d 692 (Minn. 1991), the Court of Appeals was asked whether an attempted agreement waived a surviving spouse’s legal rights as an omitted spouse from a will under Minn. Stat. §524.2-301(a), who is entitled to the same share as if the testator had left no will. But because the widow received various transfers of assets outside the will in lieu of being included in it, the court could not reach the issue.

But it did affirm substantive fairness of the agreement, which only covered marital property, holding that it was “substantively fair because it was expressly specified in the agreement.”

Another St. Louis County case, In re Estate of Kinney, 733 N.W.2d 118 (Minn. 2007), delineated the multifactor common law text for assessing procedural fairness of a prenup. Reversing a ruling of the Appellate Court, the Supreme Court held that the lack of opportunity by a spouse challenging an antenuptial agreement with a decedent to consult with independent counsel new to a prenup does not render it invalid under the common law in effect prior to the enactment of the statute in 1979. While “a relevant factor,” opportunity to consult with counsel is not controlling under the pre-statutory common law. Rather, the standard consists of “fair and full disclosure,” adequacy of knowledge of the terms and their impact and existence of fiduciary relations, undue influence, or duress. Because the Court of Appeals deemed the absence of counsel as invalidating the deal, the ruling was reversed and remanded for consideration of the four factors.

In another prenuptial probate case, In re Estate of Harding, 2026 WL 6050385 (Minn. App. Nov. 18, 2026) (nonprecedential), the appellate court upheld a prenuptial agreement challenged in a probate proceeding in Blue Earth County District Court. It rejected a claim by the surviving spouse that her conditional waiver in the document to her share of the late husband’s estate was voided by breach of agreement by both the decedent and her.

Affirming a lower court ruling, the court found no breach by the decedent and the claimed self-breach by the survivor was not recognizable under the well-established doctrine that a partner “cannot benefit from her own breaching conduct” even though the agreement contained a clause making it voidable in the event of breach by “one of the parties.”

The widow’s argument on procedural and substantive unfairness was rejected, too, noting that the agreement specifically indicated that she “anticipated the possibility of losing her [widow’s] elective share and did not lack the “opportunity to obtain independent legal advice” before signing the agreement.

Initial impressions

Two prenuptial cases arising in the Twin Cities involved issues of first impressions.

In Levine v. Levine, 2001 WL 978851 (Minn. App. Aug. 28, 2001) (nonprecedential), the appellate court affirmed a ruling of the Hennepin County District Court that applied a 75%/25% prenuptial split of marital property at the time of the marital dissolution judgment. It upheld the terminology used by the parties in defining marital property that differed from the statutory definition, where “they were free to do so.”

An intriguing instance of antenuptial law was addressed by the Ramsey County District Court in Koivu v. Koivu, 2024 WL 4481374 (Minn. App. Oct. 14, 2024) involving a familiar name in that community, Mikko Koivu, a star player for the Wild hockey team playing out of the Xcel Center, now the Grand Casino Arena, in downtown St. Paul. The 15-year scoring star and captain of the team, a Finland native, and his wife, an Estonian living in Finland, entered into an antenuptial agreement under Finnish law that limited the wife to $1 million in the event of divorce, much less than she presumably would be entitled to under Minnesota marital dissolution law.

But the Wild star won as the court upheld the agreement on a choice-of-law provision, because the agreement was drafted in Finland, they were married and lived there off-season, and he was a citizen there. Further, the selection of Finnish law to apply to the deal was done in “good faith” and not with intent to evade Minnesota law because it was designed to have a stable place for determining the issue due to the inherent mobility of the hockey player during his career, although he only ended up playing for one other club, Columbus, after his Wild years, for a mere seven games.

But Koivu’s wife was assuaged by an award of $30,000 in need-based attorney’s fees for the prolonged and contentious litigation.

As the courts sort out these cases and the new statute, it remains to be seen how the amended law two years ago plays out in current and future prenuptial proceedings.

Answer: 41% of first marriages end in divorce.

PERSPECTIVES POINTERS

A Baker’s Dozen (13) of other Dustin Hoffman movies

The Graduate (1967): Affair with girlfriend’s mother

Midnight Cowboy (1969): “Raindrops keep falling”

Little Big Man (1970): Raised by Native Americans

Papillon (1973): Prisoner on Devil’s Island

All the President’s Men (1976): Exposing Watergate with Robert Redford

Tootsie (1982): In drag to get TV role

Rain Man (1985): Another Academy Award as autistic savant

Ishtar (1987): Classic Hollywood bomb with Warren Beatty

Dick Tracy (1990): Villainous Mumbles v. Private Detective played by Warren Beatty with Madonna

Hook (1991): Nasty pirate v. Peter Pan

Wag the Dog (1997): Satiric presidential scandal cover-up

Kung Fu Panda (2008): Voice-over in animated series

Megalopolis (2024): Another epic bomb, $125 million to make, $14 million in receipts

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer, Njus, Tanick, Linder & Robbins, PA.