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06/23/88 In Re Estate of Paul I. Parker

June 23, 1988

IN RE ESTATE OF PAUL I. PARKER, DECEASED (OLIVE KELM


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Parker, Claimant-Appellant, v.

Linda J. Brewer et al., Co-Ex'rs of the Estate of Paul I.

Parker, Deceased, Appellees)

525 N.E.2d 1149, 171 Ill. App. 3d 538, 121 Ill. Dec. 842 1988.IL.992

Appeal from the Circuit Court of Shelby County; the Hon. Vernon L. Plummer, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. WELCH and KARNS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

This matter comes before us from a decision in favor of the respondents below, Linda J. Brewer and Betty R. Starwalt, co-executors of the estate of Paul I. Parker (deceased), from the circuit court of Shelby County. Petitioner, Olive Kelm Parker, filed a claim against the estate of the deceased, filed an application for the surviving spouse's award allowed by section 15-1(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 15-1(a)), and filed a renunciation and election to take against the will on October 3, 1986. In answer to petitioner's petition, respondents raised as a defense a prenuptial agreement entered into by petitioner and the deceased prior to their marriage. After a hearing on petitioner's petition, the circuit court entered an order on June 8, 1987, denying petitioner's claim, denying her the surviving spouse's award, and denying her renunciation and election to take against the will. From the circuit court's order, petitioner appeals.

The primary issues on appeal are whether the circuit court correctly interpreted the prenuptial agreement entered into by petitioner and the deceased and whether the prenuptial agreement was void for want of consideration. There is no material dispute of the facts in this case but only a question of law. Before considering the issues, we will set forth the pertinent facts.

On September 16, 1981, Paul I. Parker and Olive Kelm (Parker) executed a prenuptial agreement. Subsequently, on November 11, 1981, they married and they remained married until the time of Paul Parker's death on March 30, 1986. The respondents, Linda J. Brewer and Betty R. Starwalt, heirs of decedent, were appointed as the decedent's legal representatives on April 30, 1986. That same day, the circuit court entered an order admitting decedent's will to probate. Decedent's will was a simple one in that it provided for the payment of his debts, his funeral expenses, and his death taxes out of his estate and it further provided that the remainder of his estate, after payment of these liabilities, was to be divided in such a manner that his eight children were each to receive one-ninth of his remaining estate and that two of his grandchildren were each to receive a one-eighteenth portion of his estate. No provisions were made for the benefit of the petitioner. Petitioner filed her petition seeking a claim against the estate under the prenuptial agreement, requesting the allowance of a surviving spouse's award, and renouncing and electing to take against decedent's will.

The hearing on petitioner's petition was held on May 12, 1987. At that hearing, the circuit court heard petitioner's testimony and considered the prenuptial agreement. The circuit court, in its subsequent order, found that the paragraph of the prenuptial agreement upon which petitioner based her claim for $10,000 was severable from the remainder of the prenuptial agreement and that since neither petitioner nor the deceased gave force and effect to that paragraph, petitioner's claim for $10,000 against the estate was denied. The circuit court further found that there was sufficient consideration to uphold the remainder of the prenuptial agreement and thereby denied petitioner her allowance of the surviving spouse's award and denied her renunciation and election to take against the will, as the petitioner had waived those rights in the prenuptial agreement.

Petitioner's specific issues on appeal are threefold: first, that the circuit court erred when it found the prenuptial agreement clauses severable; second, that the circuit court erred when it failed to find the prenuptial agreement void for want of consideration; and third, that the circuit court erred when it "restructured" the stated consideration of the prenuptial agreement.

In order to address all of petitioner's issues, we must first set forth the prenuptial agreement in its entirety. ...


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