Case 2: SIMMONS v. SIMMONS United States District Court of Appeals for Arkansas FACTS: Vincent and Dorothy Simmons were married on October 9, 1976. On April 11, 1995, Vincent's mother, Louise Simmons, executed The Louise B. Simmons Trust in order to convey certain land in Florida to her children, Vincent and his sister, upon her death. Louise Simmons died on April 1, 1999, but the land remained in trust for several years after her death. After Louise died, Dorothy became concerned that she would not receive an interest in the Florida land if Vincent died before the trust was distributed, so she hired an attorney in Monticello, David Chambers, to prepare a document to protect her interest. After speaking with Dorothy, Chambers drafted an affidavit to be executed by Vincent, which stated in pertinent part as follows: "I have been married to my wife, Dorothy Simmons, for 25 years. It is my intention, through this affidavit, to convey to my said wife marital interest in said real property. If I should die prior to the above-stated Trust being dissolved, then my said wife shall receive my share of said real property as her own property. Otherwise, if said Trust is dissolved prior to my death, then my wife shall be entitled to her legal marital interest in said real property." The trust property was distributed to Vincent and his sister on November 1, 2002. On February 11, 2003, Dorothy filed a complaint for divorce. The parties reached agreement regarding the division of all property except for the Florida land. The trial court held a hearing regarding the character of this land as marital or non-marital on October 31, 2005. On December 7, 2005, the trial court sent a letter to the parties's attorneys, stating that the letter was submitted as the court's findings on the issue of ownership of the land in Florida. While the trial court recognized that a person in a divorce action is not entitled to any interest in property inherited by his or her spouse, the court noted that this law can be negated by the inheriting spouse-that is, the inheriting spouse can convey the property to the non-inheriting spouse. The trial court found that, by signing the affidavit, Vincent conveyed one-half of his interest in the Florida land to Dorothy. The trial court determined that "[t]his was done in consideration of twenty-five years of marriage, and is found to be binding." On appeal, Vincent argues that the trial court erred in finding that his affidavit constituted a contract to convey an interest in the Florida land to Dorothy. ISSUE: May the postnuptial agreement between Vincent and Dorothy be supported by their past twenty-five years of marriage? REASONING: A postnuptial agreement is an agreement entered into during marriage to define each spouse's property rights in the event of death or divorce. The term commonly refers to an agreement made at a time when separation or divorce is not imminent. The Arkansas Supreme Court recently addressed the validity of postnuptial agreements and held that they should be analyzed under the basic principles of contract law. postnuptial agreements and neia that they should be analyzed under the basic principies or contract law. The parties disagree about whether Vincent's expressed intention to convey an interest in the Florida land to Dorothy was supported by legal consideration. While the issue of whether the marriage itself is adequate consideration to support a postnuptial agreement has not been specifically addressed in Arkansas, it has long been the law in Arkansas that past consideration will not support a current promise and is not adequate legal consideration. Other jurisdictions that have addressed this issue have held that an existing marriage is past consideration and will not support a postnuptial agreement. In Bratton, relied upon by the Arkansas Supreme Court in Stewart, the Tennessee Supreme Court stated that "the marriage itself cannot act as sufficient consideration because past consideration cannot support a current promise. Following the guidance of the Tennessee Supreme Court in Bratton and our own case law holding that past consideration will not support a current promise, we hold that the parties' marriage is not adequate legal consideration to support this agreement." DECISION AND REMEDY: We reverse the trial court's order finding that the Florida land is marital property and awarding a one-half interest in the land to Dorothy. We remand to the trial court to enter an order consistent with this opinion. SIGNIFICANCE OF THE CASE: Past consideration is not legal consideration to support a contract. Questions: 1. Does the appellate court's reasoning make sense to you? What are the dangers, if any, of using past consideration in support of a contract? 2. Using the ethical guidelines in the WH process, do you believe the appellate court's decision is the morally correct one? Should it matter whether Vincent intended to convey the interest in the land at the time he signed the contract?