Introduction
The Indiana Court of Appeals issued a decision in Bischoff v. Willis on July 23, 2026, affirming a trial court’s ruling that a surviving spouse did not waive her statutory rights in her deceased husband’s estate, due to a peculiarly lost premarital agreement. The record suggests that the deceased husband had gone to extreme lengths to make his premarital agreement enforceable: it had been drafted by counsel, signed, and then walked into open court, where both parties testified, and a judge entered an order that admitted the agreement into evidence. His attorney confirmed that this was the best way to ensure the efficacy and enforceability of their marital agreement. Despite his seemingly foolproof efforts, thirty years later, no one could find a copy of the agreement. The exhibit had been destroyed or misplaced, neither party had retained the agreement, and the attorney who had drafted it originally could not recall its specific language. The estate lost not because the agreement itself was invalid, but because the one document that could prove its terms had vanished, and everything else about it went with it.
Facts of the Case
Wayne Willis (husband) and Jeannie Willis (wife) were married first in January of 1984. Jeannie filed for a divorce six years later, in 1990. The couple contracted a five-page marital agreement in which each party waived and released all rights to any shared marital property or stake in the other’s estate. Their agreement provided that on the death of either spouse, the decedent’s property would pass by will or succession, essentially as if the marriage had never happened in the first place. However, the dissolution was dismissed, and the parties chose to stay married. In 1991, Wayne filed for divorce, and it was granted the following year. While in court finalizing their divorce, Jeannie challenged the terms and validity of the 1990 agreement, but the dissolution court upheld it and divided the marital estate according to its terms.
A couple years following, the parties reconciled and decided to marry again. Before they did, Wayne, wanting to ensure the enforceability of their marital agreement, consulted his attorney to ensure their agreement would be attack-proof. His attorney advised him that the best way to get his agreement to be as secure as possible would be to have it approved by a judge in open court with both parties present. In 1994, he took his wife, along with both of their attorneys, to a Circuit Court under a newly opened cause number, asking the court to approve the new, two-page premarital agreement they had signed. The court took all of their testimony and admitted the agreement into evidence, finding it fair and equitable. Nothing further happened in that case. Wayne and Jeannie remarried in February 1995, and remained that way until Wayne’s death in April of 2024.
After his death, Jeannie filed a notice of election to take against Wayne’s will under Ind. Code § 29-1-3-1, seeking to collect her spousal allowance under Ind. Code § 29-1-4-1. Wayne’s estate’s representative objected to Jeannie’s request, arguing that she had waived those rights long ago in their 1994 premarital agreement.
In Court in August of 2025, the central problem came to light: no one had the premarital agreement. Not the original document that both parties had at one point, nor the exhibit from the 1994 hearing, were able to be located, and the court noted that the exhibit from 1994 had been destroyed or lost. Jeannie testified that she had no memory of the hearing or the agreement, but was absolutely certain that she had not waived a spousal claim. When the estate asked about the agreement’s contents, Jeannie objected under Ind. Admin. R. 10(D), arguing that it was a lost court record and thus was subject to reconstruction. The estate responded, stating that the premarital agreement was a written contract, and that the drafting attorney could therefore testify to its contents under Ind. Evid. R. 1004. The court sustained Jeannie’s objection but allowed the estate to continue questioning the attorney as an offer of proof, which preserved the excluded testimony in the record for appeal. The attorney testified that he did not remember specific language in the agreement, but that it reaffirmed the first agreement written in 1990, including its waiver of spousal rights.
The trial court found that, even if the attorney’s testimony were to be admitted, it would not establish the contents of the agreement, as there were a plethora of inconsistencies between the attorney’s account of the agreement and the surviving transcript from the 1994 hearing, and because more than three decades had passed. It concluded that the estate had not proven the existence nor specific terms of the alleged agreement waiving Jeannie’s spousal claims. The estate appealed.
Legal Issue
The legal issue in this case was whether the estate carried its burden, properly proving that the 1994 premarital agreement contained a spousal rights waiver. Due to an inability from either side to produce the agreement and a lack of credible recollection testimony regarding its contents, the case turned on which party carried that burden when the evidence no longer existed.
Court Analysis
The court began by examining Indiana’s statutory framework regarding spousal rights. Under Ind. Code § 29-1-4-1(a), a surviving spouse is entitled to a spousal allowance of $25,000 and may elect to take against the deceased spouse’s will under Ind. Code § 29-1-3-1. These rights may be waived, but only by a written agreement with a waiver that has been signed by the party waiving their own rights (Ind. Code §§ 29-1-2-13 and 29-1-3-6), and as the court noted in Boetsma v. Boetsma, an antenuptial agreement can serve as such.
In this case, Jeannie petitioned for both the contention of her spouse’s will, as well as her spousal allowance to be granted. Because of this, the burden fell on the estate to establish an adequate waiver for both of these rights. Using framework established in Taylor v. Taylor, the court articulated the issue that the estate had to prove: whether the agreement extended to a waiver of the right to elect against the will. No one disputed that the agreement had existed and had been signed in court in 1994, however, without proof, its contents were unknown. Jeannie testified that she was certain that it had no waiver. Wayne’s former attorney, though noting that he did not recall the language within the agreement, testified that the agreement had reaffirmed the 1990 waiver. The trial court did not find his testimony credible, and the appellate court declined to reweigh that determination. The appellate court declined to decide whether excluding that testimony was an error, because the offer to prove had preserved it in the record, and the trial court had found that the estate would have failed even if the testimony was admitted, thus it made no difference in the outcome. The estate ultimately lost due to an inability to fulfill the burden of proof.
Practical Implications
Practitioners should note this case as significant for its reminder of the importance of preservation. Wayne Willis did more than most clients ever do to solidify and verify the validity and enforceability of his premarital agreement, and yet it still failed. The peculiar circumstances regarding the missing document (both the copy that the parties should have held, as well as the court records) ultimately undid the very protection Wayne had paid a lawyer and a judge to build. Practitioners should take note of this story, and advise their clients to store agreements in several locations, and even with family members. Practitioners should also retain copies of marital agreements themselves.
This case also shows how thin attorney testimony becomes as a substitute. Wayne’s former attorney recalled the strategy behind the 1994 hearing very clearly, and recalled that the waiver had carried forth in it, but he could not recall its language. His testimony was excluded on the ground that the agreement was a lost court record, and the trial court found that, even if his testimony had been admitted, his account of the agreement was so inconsistent with the 1994 court transcript, and too distant in time, that it could not establish any certainty regarding the existence of the waiver. Practitioners should understand that their own recollection of what an agreement generally accomplished will not establish any certainty upon a record, and should not be treated as a fallback if the document goes missing.
Conclusion
Bischoff v. Willis is a decision about evidence rather than drafting, and about the burden that falls on a party claiming a waiver was made. Whether that 1994 agreement actually contained a waiver that Jeannie signed, forfeiting her spousal rights to contest her deceased husband’s will, remains unknown. What this decision does tell us is where the risk lies: Wayne went to extreme and unusual lengths to ensure this exact scenario would not happen, and it happened anyway. The estate had to prove not just that an agreement existed, but that a specific waiver of spousal rights existed inside it, and a spotty recollection from the drafting attorney could not carry that weight. Jeannie was found to be entitled to her spousal allowance and share. The lesson for practitioners is a reminder that an agreement cannot be enforced if it cannot be produced, however carefully negotiated or formally approved. Note that this decision is not binding precedent and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.