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Widow Is Impoverished, But Prenuptial Agreement Stands

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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.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.