Section 4.10 Fairness—Adequacy of Consideration

• Library: Family Law Deskbook and 2014 Supp

3. (§4.10) Fairness—Adequacy of Consideration

A common attack on the validity of these agreements
is the claim of unfairness or inadequate consideration. Whether an agreement was entered into fairly or with sufficient consideration will ultimately depend on the totality of the circumstances of each case. The client should be so advised. The discussion of fairness and consideration in the caselaw does not provide clear guidelines of what to look for and to avoid.

In the cases dealing with agreements affecting rights upon death, the discussion centers on fair consideration. The reviewing court will consider the adequacy of the provisions for the spouse in view of the wealth of the parties, their ages, and all other circumstances. Estate of Youngblood v. Youngblood, 457 S.W.2d 750 (Mo. banc 1970). The adequacy of the provisions for the surviving spouse is judged as of the time the agreement was entered into despite a subsequent material change in circumstances by the time of death. Id.

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