I cannot imagine a more terrifying meeting with corporate counsel than pitching the recent video of a race car driver in disguise taking a sales person on a joyride.
http://youtu.be/Q5mHPo2yDG8
Let’s consider the possible legal issues the attorney was faced with in making a “surprise” online commercial:
1) Do not kill anyone.
2) Talent Releases of Everyone Filmed. Not difficult, but something to make sure is done.
3) Permission from the auto dealer in advance of the “test drive.” There would be liability issues in the event the car was damaged. One would assume phone calls were made to secure permission, confirmed with contracts. This says nothing of the risk to human life.
4) Securing permission to engage in “reckless” driving. There had to be a closed course of some kind that kept the public from entering the area where the “joyride” was taking place. Permits most likely were filed to secure this permission and road closures.
5) Permission to drive on private property at a high rate of speed. Certificates of Insurance naming the property owner as an additionally insured were most likely issued.
6) What happens if the sales person was injured or had a medical emergency from the joyride? Would there be issues of kidnapping by taking the sales person on the joyride against their will?
Many people enjoy these “gotcha” videos, but attorneys have to go on their own high speed chase to ensure all laws are followed in producing such webisodes. These are only a few of the issues to consider. There most likely were many more for corporate counsel to make decisions on, followed by an ice cold refreshing beverage that was not soda.
Everything dies. Your chances of dying unexpectedly also go up exponentially if you have run-ins with Ice Warriors, Cybermen, Daleks, Zygons, Voords or The Rani.
Most people plan for death by writing a will. The survivors of those who do not have a will learn very quickly about inheritance through intestate succession.
However, what about the Doctor? What effect would the ability to regenerate when one’s body dies and a wave of energy creates a new body for the former decedent? There is one way to know for sure.
The Doctor needs The Lawyer.
Death of a Time Lord
Time Lords (and script writers for 50 years) have a way of cheating death: They can regenerate 12 times.
This happens when a Time Lord “dies”: A wave of energy surrounds the dying/dead body of the Time Lord, creating a “new” body that is physically different.
There are significant personality changes and preferences in everything from clothing, manners and humor.
And sometimes diet.
Virtually every regeneration scene in Doctor Who (minus the Sixth to Seventh) showed a knowledge of impending death.
The Tenth Doctor’s “I don’t want to go” is the best evidence that the Tenth Doctor knew his “life” was ending and a new Doctor would take his place.
The power to regenerate enables Time Lords to live a very long time, but that does not mean Time Lords cannot die. For example, a Time Lord can die if the regeneration process is interrupted. Or in the Master’s case, he chose not to regenerate, and died.
The “New” Time Lord
The “new” Time Lord, despite being a different person, is still the same person at their core. This is evident in values, memories, friendships, behavior and property ownership.
And the Time Lord usually maintains the same enemies (The Doctor vs The Master is Exhibit A of this point).
Three of the best examples of different regenerations of the Doctor having common characteristics is 1) the majority of Doctors all used a sonic screwdriver; 2) three of the eleven Doctors wore bow ties (arguably the First Doctor wore an Victorian style bow tie at times); and 3) The Doctor likes having at least one traveling companion.
Virtually all of the Doctors have also shown they can do a lot of running.
However, there are significant differences between the regenerations of a Time Lord.
Take the Third Doctor for example. Every Doctor has been willing to confront their enemies, but the Third was perhaps the most physical of the Doctors with his Venusian Karate.
Why are differences in clothes, personality and whether a Time Lord gives a karate chop relevant to the validity of a will?
Because it shows that the change between regenerations creates a “new” person, which would impact the intent of a prior existing will.
The Law of Wills & Time Travel
The Black’s Law Dictionary iPad App defines a Will as:
The legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death <there was no mention of his estranged brother in the will>. — Also termed testament; will and testament; (archaically) testamentary instrument.
Case law on Wills state that the “primary and paramount factor in construing a will is testator’s intention.” In re Estate of Reinhardt (1887) 74 Cal 365. State legislatures have codified the importance of the intent of the testator with code sections stating the “intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument.” Cal Prob Code § 21102.
Wills have specific rules on how they are constructed, such as the following general requirements:
1. The will must be in writing;
2. The will must be signed by the testator;
3. The will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.
Generally, Cal Prob Code § 6110.
The will should also be dated. This is a problem with someone who travels in time, because it can result in paradoxical interpretation of when a will was drafted.
California created a rule that beneficiaries of a will must survive the testator by 120 hours. Again, another problem for someone who travels in time, because the named beneficiary might exist in time several decades before the testator’s death, and thus has already been dead for years, even though they survived the testator. Cal Prob Code § 6211.
A holographic will does not involve holograms at all (Sorry, the Ninth Doctor’s Emergency Program 1). A holographic will is a valid will if it is written by the testator’s own handwriting and signed. Cal Prob Code § 6111.
A will is revoked if a subsequent will states the older will is revoked or by any inconsistency with the new will. See, Cal Prob Code § 6120. This is a problem for a time traveler, because a prior will can be created in time before the original will was prepared.
The Law of Intestate Succession
The Black’s Law Dictionary iPad App defines intestate succession as:
(18c) 1. The method used to distribute property owned by a person who dies without a valid will. 2.Succession by the common law of descent. — Also termed hereditary succession; descent and distribution.
The general rule for intestate success if the deceased did not have a spouse, property flows down to children (the issue of the deceased); if no children then to up parents; if no surviving parents, then to the issue of the parents. See, generally, Cal Prob Code § 6402.
Intent of the Deceased vs Regenerated Time Lord
What effect does the personality changes between regenerations have on the validity of a will? Arguably the will is no longer valid, because the changes can be great, thus revoking the intent of the past Time Lord.
Take the 10 year anniversary special The Three Doctors for example. The Second and Third Doctor openly debated with each other; the First Doctor gave them both a once over and stated, “So you are my replacements: A dandy and a clown.”
The same can be said for each time the Doctor has encountered past versions of himself in the Five Doctors, the Two Doctors, and Time Crash: all had arguments with each other.
They all then got along, with one big exception: Trial of a Time Lord.
The villain in Trial of a Time Lord was the final (or second to last) regeneration of the Doctor (known as The Valeyard), serving as the prosecutor of the Sixth Doctor for genocide and other crimes.
On a fundamental level, it is very hurtful that the Doctor “turned evil” and became a lawyer.
The Valeyard is powerful evidence that a future regeneration can have a complete change of intent, rendering any past wills to be completely invalid (and a regeneration that will probably be disregarded because of the The Last Great Time War).
What does this mean for any Time Lord with a prior will? The effect of a regeneration could result in a new version of oneself with a different set of values, requiring the new Time Lord to review their prior will for any modifications based on their current intent.
A Big Ball of Wibbly Wobbly Timey Wimey Legal Stuff
The effect of time travel on drafting and modifying wills would cause an attorney to scream as if they had looked into the Time Vortex in determining the intent of a Time Lord client. The law firm would also give the Doctor the nickname “The Oncoming Storm” because of the causation complexities time travel creates in interpreting the validity of a will. Consider the following hypothetical temporal legal timeline of will modifications:
This is highly problematic for an attorney, because the reasons for modifications (if not revocations) of a will are out of order, despite being in temporal order. The order of will modifications would have to be reviewed by when the Doctor made them in his lifetime, not temporal order. This fundamentally changes legal analysis. Let’s review the will history not in temporal order, but the order in which the Doctor made the will modifications:
The First Doctor prepares a will naming his granddaughter Susan to take possession of the TARDIS in the event of his death on November 23, 1963.
The Second Doctor modifies his will in 1746 to leave Jamie McCrimmon his recorder.
In 1972, the Third Doctor again modifies his will to leave Elizabeth Shaw his shoes with the keys to the TARDIS.
At 65 Million BC, the Fifth Doctor creates a pour over trust to create a mathematics scholarship in the memory of Adric.
In 2986, the Sixth Doctor again modifies his will to create a scholarship from a pour over trust for botany students on Earth in memory of the Vervoids.
In the year 200,100 the Ninth Doctor’s “holographic will” tells Rose to let the TARDIS die, be buried, and for her to live a good life.
The Eleventh Doctor in 1890 adds a codicil to his will to leave Vincent van Gogh the collected works of Andrew Wyeth (who will not be born until 1917).
Could the different hypothetical wills all be valid, despite being from different regenerations?
Maybe. A Court would look at the intent of each will and see if there are any conflicts. Moreover, were there any significant life changes (besides the regeneration) that would call into question the validity of a will? For example, getting married (or divorced) or having a child are such life changes that could show a change in intent.
Consider the above hypothetical: The First Doctor’s will to leave the TARDIS to Susan would likely not be valid after Susan left traveling with the Doctor and the Last Great Time War, because she is presumed dead with all other Time Lords. Unless she is hiding as a human.
As for Jamie McCrimmon, he died on an [comic book] adventure with the Sixth Doctor, thus Jamie would not be able to inherent under the Doctor’s will.
The Third Doctor’s will leaving his shoes with the TARDIS keys to Elizabeth Shaw would no longer be valid, because the Doctor’s banishment to Earth ended in 1973 and Shaw also left the Doctor’s company very early in the Third Doctor’s adventures.
The Fifth and Sixth Doctors’ intent to create pour over trusts would likely still be valid, provided there are funding sources for the scholarships.
However, would the Ninth Doctor’s holographic “Emergency Program 1” revoke all prior wills? While the Doctor did have a hologram giving his last wishes, the recording was not a written document in his own handwriting. However, it is arguable that Rose was the Doctor’s agent to carry out the Doctor’s final wishes.
As for Vincent van Gogh, the validity of the will would turn on when the Doctor died whether van Gogh could take under a will. If the Doctor died in the 34th Century, van Gogh in the 19th Century would not survive the Doctor the required 120 hours to take under the will (the difference between the 34th Century and the 19th Century is thousands of years longer than 120 hours).
However, consider the Eleventh Doctor’s two marriages: Marilyn Monroe and River Song. The Doctor should have changed his will after each, provided the marriages were both valid. One can imagine the marriage to Monroe was annulled shortly after the Christmas Eve ceremony. Conversely, it is difficult to say the marriage to River Song is valid, because it took place in an alternate timeline in Egypt caused by a paradox with all of reality crashing down around them. This ceremony might not be valid anywhere (or any timeline) because of the temporal paradox and lack of a marriage license for Court to recognize. It is also difficult to show a Common Law or Marvin marriage, due to the lack of the Doctor and River living together for any period of time.
What does this all mean? The Doctor really should see a lawyer after regenerating to ensure all his affairs are in proper order. Moreover, the power to regenerate does not mean the there is no risk of death; seeing an attorney to have a valid will is the responsive thing to do for someone who walks in eternity.
Countdown to Darkness, the official Star Trek comic prequel to Star Trek Into Darkness, has come out with its first two issues.
The story focuses on the U.S.S. Enterprise visiting a planet that was supposed to be the technological equivalent of ancient Rome and somehow had energy weapons.
The key “legal villain” in the story is the former captain of the Enterprise, Robert April. Well, and barbaric aliens called the Shadows. And maybe a Bajoran woman named Mudd.
Only if you are a hard core geek do you know of Commodore Robert April from the animated series where the Enterprise crew was aging backyards. However, in the “new” timeline, April was not captain of the Enterprise that was also captained by Christopher Pike and then James T. Kirk, but a prior Enterprise (based on the Captain’s Chair, possibly the 1701 from The Original Series that was decommissioned for the new 1701). He never made the rank Commodore and spent 20 years going rogue.
How is Robert April the “villain”? He deserted his Enterprise, thanks to a cover-up by his First Officer, to stop the minority of a pre-warp society from being butchered by the majority known as Shadows.
This is also a crime, because April willfully violated the Prime Directive. For those who do not know the actual text of the Prime Directive, it states the following:
As the right of each sentient species to live in accordance with its normal cultural evolution is considered sacred, no Star Fleet personnel may interfere with the normal and healthy development of alien life and culture. Such interference includes introducing superior knowledge, strength, or technology to a world whose society is incapable of handling such advantages wisely. Star Fleet personnel may not violate this Prime Directive, even to save their lives and/or their ship, unless they are acting to right an earlier violation or an accidental contamination of said culture. This directive takes precedence over any and all other considerations, and carries with it the highest moral obligation.
How did April violate the Prime Directive? He armed the inhabitants of Phaedus IV with Federation weapons in their civil war and became the “leader” in the minority’s fight against the Shadows.
It is highly unlikely a JAG officer will make an appearance in the story, but it is obvious that Captain April can be charged, and convicted, of a violation of the Prime Directive. His former First Officer also could be charged with a conspiracy to violate the Prime Directive and any subsequent crime by April in furtherance of the conspiracy. However, the former XO might not be responsible for additional arms smuggling, as that arguably is outside the scope of the original conspiracy for April to leave the Enterprise to help fight against the Shadows. It would all depend whether the Executive Officer contacted the arms dealers.
Of course, this is a Star Trek story. Let’s see how the story unfolds Into Darkness…
Because few Americans are greater symbols of resolution, loyalty to country and the courage to overcome defeat.
Moreover, John Quincy Adams is a reminder of how one lawyer can make a difference in the United States.
JQA suffered a massive stroke on the Floor of the House of Representatives on February 21, 1848.
He served in the House from 1830 to his death on February 23, 1848. He is the only American President to be elected and serve in Congress after his Presidency. [While President Andrew John was elected to the Senate by the Redeemer Government in Tennessee, he died before taking the oath of office.] During this time, President John Quincy Adams earned the nickname Old Man Eloquent.
Never before in our country’s history had there been a larger funeral for a former President of the United States. Statesmen and a grieving procession several miles long accompanied Adams’ body back to Quincy, Massachusetts. In true government fashion, Adams’ coffin was several inches too wide for the crypt.
Only one other state funeral would have a larger outpouring of national grief in the 19th Century. It was for an attorney from Illinois who served one term in Congress. His name was Lincoln.
JQA grew up at the founding of the United States, thanks in large part to his father’s determination to see an independent United States of America. A boy who became an ambassador (and the only family where the grandfather, father and grandson each served as Ambassador to England); the US Senator who lost his office because of his support for the Embargo Act of 1807; the statesman who helped negotiate the end of the War of 1812; the Secretary of State who defined 19th Century foreign policy with the Monroe Doctrine; and a man elected President of the United States by the House after a disputed election with four candidates.
President John Quincy Adams was the first “modern” President who did not wear a wig, worn clothes modern for the time and had what would be considered a progressive administration. He wanted roads, a Naval Academy and what would be called the Smithsonian. He also wrote in his diary daily, even go so far to teach himself to write left-handed when his right hand became tired. He also swam nude in the Potomac to exercise…which would not go over well today.
Unfortunately, his Presidency was a total failure. Congress dug in and opposed him on every issue, biding their time for Andrew Jackson.
Adams lost the election of 1828. Many historians joke it was probably more honorable to have lost than won that race. During the campaign, Jackson’s people accused Adams as having supplied the Russian Tsar with American virgins while Adams was Commissioner to Russia (which was not true); the Adams camp produced the Coffin Hand Bill, which accused Jackson of being a bigamist, having killed men in duels and being illiterate. All of which were true about Jackson.
Jackson could also spit blood at will on people he argued with, thanks to a dueling injury.
To be fair, Jackson’s wife did not have a proper divorce from her first husband. The stress of the election also killed her.
Adams was one of two Presidents not to attend his successor’s Inauguration. The other was John Adams.
How does a man totally defeated from the Presidency have the courage to run for the House of Representatives? How does he serve with honor and dedication until his dying day? Where does that courage come from?
Congressman John Quincy Adams fought tooth and nail against the Gag Rule, the practice of tabling without reading petitions on slavery. Adams called the Gag Rule exactly what it was: an outright violation of the First Amendment, denying citizens the right to petition their government for grievances. Adams was once greeted in Ohio for his defense of the First Amendment with a banner declaring he was the “Defender of the Rights of Man.”
In time, John Quincy Adams’ allies grew. One was Joshua R Giddings. Congressman Giddings also took up many of Adams’ causes. Like most Congressmen of the time, many lived in boarding houses and ate together. Adams and Giddings lived at the same boarding. Giddings roommate was Abraham Lincoln.
So, why a bust of John Quincy Adams? Because I admire a lawyer who lived, fought and died in order to make America better.
Long, long ago, in a galaxy far far away, the planet of Tatooine apparently did not have any laws on employee safety or premise liability.
Jabba the Hutt’s Palace would make thousands of OSHA inspectors scream out in horror, then nothing.
Jabba’s safety standards raise many issues as they related to employees (such as the guard who fell in the Rancor Pit), independent contractors (Boba Fett) and those held in servitude (Oola, the green dancing girl fed to the Rancor & Princess Leia).
Employers’ Duty to Employees
Provided the Old Republic had similar employee protection laws to the United States, an employer:
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
29 USCS § 654(a).
Additionally, floors with holes that “persons can accidentally walk” into (such as on a construction site) must be guarded by a railing or cover. W. C. Sivers Co. (1972) OSHRC Docket No. 239, 1973-1974 CCH OSHD P 17792, 29 CFR 1926.500(b)(8).
The Trap Door to The Rancor Pit
Jabba the Hutt used a trap door to 1) dispose of Oola, the dancer who displeased Jubba and 2) attempt to eliminate Luke Skywalker, accidentally sending a guard to be a snack for the Rancor.
Oola’s case highlights several issues: She was held in Jabba’s Palace against her will and then fed to the Rancor.
Jabba’s actions would range from holding someone in slavery (which apparently was legal on Tatooine) to outright murdering her.
Jabba’s Palace Guard who fell in the Rancor Pit with Luke Skywalker was owed a duty by Jubba to be free from recognized hazards that are causing or are likely to cause death or serious physical harm.
However, as a palace guard, he also assumed the risk the different dangers that came with the job. With that said, being a palace guard does not mean he assumed the risk of falling through a trap door and being eat alive by the Rancor.
Even if the Guard could have assumed the risk of falling down the trap door, the Rancor was a wild animal (See, Wookieepedia). Case law has found that an owner of property can be liable for injuries under premises liability for a free roaming wild animal on their property provided they have knowledge of the dangerous animal. (See, The Landings Ass’n, Inc. v. Williams, 736 S.E.2d 140 (Ga. Ct. App. 2012), regarding knowledge of an alligator in a lagoon that injured someone). In Jubba’s case, the Rancor was imported to Tatooine to be used as an execution weapon in a pit. It certainly was not free roaming, but purposely contained because it was dangerous. It was highly foreseeable that the creature could accidentally eat the wrong person.
The Independent Contractor & The Sarlacc Pit
Boba Fett was an independent contractor, because he was a bounty hunter not directly employed by Jabba the Hutt. In the universe of premises liability, independent contractors are viewed as business invitees. Taylor v. Nabors Drilling United States, LP, 2013 U.S. Dist. LEXIS 14555, at *5 (S.D. Miss. Feb. 4, 2013).
What duty was Boba Fett owed by Jabba while on the Barge over the Sarlacc Pit?
A case involving an injury on an oil rig is illustrative, if we view Jabba’s barge over the Sarlacc Pit like an oil rig at sea.
Jabba as a premises owner (the barge, not the sand dunes) had a general duty to “provide an independent contractor with a reasonably safe work environment or give warning of danger.” Taylor, at *5, citing Nofsinger v. Irby, 961 So. 2d 778, 781 (Miss. Ct. App. 2007).
However, Jabba as a premises owner was not, “an insurer of the [independent contractor’s] safety.” Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002). However, “there are exceptions to the general rule, which can be reduced to two issues: who controls the work which caused the injury, and whether the contractor had actual or constructive knowledge of the hazard which caused the injury.”Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002).
Case law states that when the premises owner “devolves upon the contractor the right and fact of control of the premises and the nature and details of the work, the owner has no liabilities for injuries experienced by the contractor’s workers where those injuries arose out of or were intimately connected with the work.” Taylor, at *5.
A premises owner is “not liable for the death or injury of an independent contractor or his employees resulting from dangers that the contractor, as an expert, knows or reasonably should know.” Taylor, at *6, citing McCarthy, 829 So. 2d at 14. The Taylor Court went on to state:
Phrased differently, a premises owner will not be held liable where an independent contractor has “assumed the risk” of danger. Stokes, 217 F.3d at 357. Accordingly, an “employer is relieved of the duty of informing an independent contractor of a danger at the work site if the independent contractor knows of that danger.” Nofsinger, 961 So. 2d at 781.The “knowledge of the danger” exception . . . does not require such a close nexus between the dangerous condition and the work the contractor is obligated to perform. That rule rests on the premise that under circumstances where the contractor has knowledge of the condition, his ability to avoid the harm is equal to that of the owner of the premises. The ability of the contractor to avoid injury where he knows that a dangerous condition exists does not depend on his control over the manner in which the work is performed or his reason for being on the premises. Stokes, 217 F.3d at 359.
Boba Fett was the adult clone of Jango Fett, trained as an expert bounty hunter. Given his skill as a warrior-for-hire, he assumed the risk of engaging Luke Skywalker, Han Solo and Chewbacca in battle over the Sarlacc Pit. As such, Jabba owed Boba Fett no duty under premises liability for any injuries sustained in the Sarlacc Pit.
Rancors’ Rights: Possible Episode VII Plot Ideas
The New Republic may mean the end of Slave Leia outfits, but what about the Rankors of the universe? Will the outlawing of slavery in the New Republic mean these creatures could still be held against their will for brutal entertainment? Let’s review one California case for a possible outcome.
Plaintiffs in California brought a Next Friends case on behalf of orca whales held at Sea World, claiming the whales’ 13th Amendment rights were being violated. Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).
That’s right, the Killer Whales were the Plaintiffs.
After lengthy historical analysis, the Court held the 13th Amendment applied only to persons, not non-humans. Tilikum,at *1263.
In the case of the Rancors, it is unlikely a law prohibiting slavery would apply to them, as they were simply eating machines. As such, the New Republic would need specific legislation to ensure the safe and humane treatment of Rancors.
Star Trek Deep Space 9 addressed many legal issues in its seven seasons, from whether a host of a symbiont could be tried for the crimes of a past host/symbiont (Dax), to the right to a fair trial (Tribunal) and prosecutorial misconduct from presenting false evidence in a court hearing (Rules of Engagement).
Some of the biggest legal issues presented were on Ferengi culture across multiple episodes. Ferengi law prohibited women from wearing clothes, leaving the home, learning to read and earning profit. Moreover, 53% of Ferengi population was female, casting the laws as a form of gender-apartheid.
Adding insult to further injury, women who wished to marry had to sign a Waiver of Property & Profit, which was a prenuptial agreement that prohibited the prospective wife from 1) owning any property and 2) making any claims against the husband’s estate in the event the marriage ends.
Many of these issues were the central themes in the episode Ferengi Love Songs, which addressed prenuptial marital agreements and equal protection under the law.
Validity of Ferengi Prenuptial Agreements
In Community Property states (or planets), property acquired during a marriage is the joint property of the “community” and would be divided equally at either divorce or death (unless the community interest owned by the deceased spouse is specified in a will). Conversely, property acquired before marriage, or acquired by gift or devise, is the separate property of a spouse.
However, the property rights of the community may be altered by a “contract” between the husband and wife (such as a premarital agreement).
In California, these agreements are executed without consideration and become effective when the marriage begins.
And no [fictional] race is better at contracts than the Ferengi.
Considering these legal principles, could the Ferengi Rom have a valid prenuptial agreement with his Bajoran fiance Leeta that prohibited her from having an interest in his property?
Could Rom prohibit Leeta from owning any property?
As a preliminary matter, simply decloaking before a prospective wife with such an agreement is pretty much entering the command code to set your relationship on self-destruct. With a zero second countdown. It truly would be the no-win scenario.
California law states for a premarital agreement to be enforceable, the following must be demonstrated:
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
Cal Fam Code § 1615.
Right out of the space dock, the premarital agreement would be unenforceable on its face if the prospective wife was not represented by counsel to advise the prospective wife on her property ownership rights or possible community property rights. Additionally, there would be a strong public policy agreement against stripping the prospective wife of her right to own any property. That alone would leave the premarital agreement dead in space.
While case law has upheld premarital agreements with spousal support waivers that are “executed by intelligent, well-educated persons, each of whom is self-sufficient in property and earning ability, and both of whom had the advice of counsel regarding their rights and obligations as marital partners at the time they executed the waiver,” divesting a woman of her right to own any property would completely destroy the prospective wife’s ability to be “self-sufficient in property and earning ability.” In re Marriage of Pendleton & Fireman, 24 Cal. 4th 39 (Cal. 2000). Moreover, there is a huge difference between contracting away spousal support rights and a woman being reduced to property.
Turning to Oklahoma case law, an “antenuptial agreement” is enforcement if it is “fairly procured.” Okla. Stat. Ann. title 84, § 44; In re Estate of Cobb, 305 P.2d 1028, Syl. P 2 (Okla. 1956). One Oklahoma case stated:
To ensure fairness, antenuptial agreements that make no provision for the intended wife are given the “closest scrutiny.” Cobb, 305 P.2d at 1031. Further, agreements that do not provide (or meagerly provide) for the intended wife are valid only where “a full and fair disclosure was made to her of the extent and value of [her prospective husband’s] property before she signed it, or that she was aware to all intents and purposes of the nature, character and value of the estate which she was relinquishing . . . .” Id. at 1032 (emphasis added).
Gant v. Gant, 1994 U.S. App. LEXIS 20603 (10th Cir. Okla. Aug. 4, 1994).
The Gant case would be of little help to finding an enforceable Ferengi prenuptial agreement, because even if the prospective wife understood the value of the estate she was relinquishing, one could not argue giving up an interest in a future husband’s estate is the same as giving up her right to own property herself.
It is highly unlikely that a prenuptial agreement that prohibited a wife from owning property would be valid. However, a prenuptial agreement that only protected the pre-marriage assets of the parties is a “traditional” prenuptial agreement. If Rom simply wanted to protect his own estate in the event of divorce, it likely would be a valid prenuptial agreement, depending on how the agreement was executed. Consider the following valid marital agreement:
WHEREAS, the parties to this agreement contemplate entering into the marriage relation with each other, and;
WHEREAS, [the husband], individually owns certain tangible and intangible property, a list of which is set out hereinafter in Exhibit ‘A’, the nature and extent of which has been disclosed to the [wife], and he desires that all property now owned or hereafter acquired by either [sic] shall be free, for purposes of testamentary disposition, divorce or otherwise, from any claim of the [wife], that may arise by reason of their contemplated marriage, other than as set out herein;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, it is agreed as follows:
1. Both before and after the solemnization of the marriage between the parties, [the husband] shall separately retain all rights in his own property, including all interest, rents and profits which may accrue or result in any manner from increases in value, and he shall have the absolute and unrestricted right to dispose of his property, free from any claim that may be made by the [wife] by reason of their marriage, and with the same effect as if no marriage had been consummated between them, whether such disposition be made by gift, conveyance, sale, lease; by will or codicil or other testamentary means; by laws of intestacy; or otherwise. Any property, real, personal or mixed, acquired after the date of said marriage shall be considered joint property unless agreed to in writing, signed by both parties.
. . . .
8. [The wife] has examined the financial statements attached hereto and made a part hereof as Exhibit ‘A’ and has had the opportunity to question and examine all items therein, and acknowledges that fair disclosure has been made by [the husband], as contemplated under the provisions of Section 43-8-72, Code of Alabama (1975), as amended. Each certifies that he or she has had an independent and separate counsel and has been independently advised and has been given, without limitation, all information requested. Each further certifies that counsel has advised and informed him or her of the legal effects of this document.
9. In the event of the death of [the husband] or the granting of a final divorce decree, [the wife] shall have no right to any claim against the estate of [the husband] based on spousal or marital rights including, but not limited to maintenance, support, or property settlements, by reason of or on account of dissolution of the marriage, or by reason of death.”
Exhibit A, which was a document attached to the antenuptial agreement, was labeled “Property to be Retained by [the husband], Individually, Without Any Claims by [the wife],” and it included six paragraphs identifying real and personal property, as follows:”
1. Any pension plan, including all stocks owned prior to marriage of parties, and including any IRA accounts, SEP IRA accounts or 401k accounts.
2. All checking and/or savings accounts, including money market accounts individually owned by [the husband], prior to marriage of the parties.
3. All jewelry owned by [the husband], including jewelry passed down to said [husband] by his parents, and/or grandparents, including his mother’s engagement ring, grandmother’s engagement ring, mother’s diamond/ruby ring, mother’s emerald ring, and father’s diamond cluster ring.
4. Automobiles owned prior to marriage, including BMW automobile [and] Ford Explorer.
5. Home, real estate, and furnishings located therein, located at [the marital residence].
6. All personal property and belongings owned by [the husband] prior to the marriage of the parties.”
Hood v. Hood, 72 So. 3d 666, 670-671 (Ala. Civ. App. 2011).
There is no question that a court, especially considering the contract would provide nothing to the wife in the event of divorce or death, would closely review a prenuptial agreement.
To be valid, a court would require having Leeta at least be represented by an attorney, with an opportunity to fully review Rom’s assets and understand what rights she was waiving.
Even then, the former Dabo Girl turned Jumja stick vendor, still might have been at a disadvantage to negotiate, given their differences in economic abilities.
Sadly, the episode does not have a happy legal ending, because neither party had an attorney. Instead of a prenuptial agreement that protected the interests of both Rom and Leeta, Rom gave away his money to an orphanage (a win for the children), effectively taking a vow of mutual poverty to marry Leeta.
If only there had been a law firm on DS9….
Now, let’s talk about equal protection under the law for Ferengi women who are banned from reading, wearing clothes, leaving the house, having a job, or earning profit….
…and don’t forget about the potential harassment suits over Quark’s employment contracts over Oo-mox….
