Probate, trust, guardianship and inheritance litigation
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Waiver of Spousal Rights In California Probate

By Andrew Gold, Esq.

Spouses in California can enter into contractual arrangements relating to their rights at death, i.e. a waiver of spousal rights in California probate.  The California Probate Code provides that a surviving spouse can waive, in whole or part, the following rights at the death of their spouse:

(1) Property that would pass from the decedent by intestate succession.

(2) Property that would pass from the decedent by testamentary disposition in a will executed before the waiver.

(3) A probate homestead.

(4) The right to have exempt property set aside.

(5) Family allowance.

(6) The right to have an estate set aside under Chapter 6 (commencing with Section 6600) of Part 3 of Division 6.

(7) The right to elect to take community or quasi-community property against the decedent’s will.

(8) The right to take the statutory share of an omitted spouse.

(9) The right to be appointed as the personal representative of the decedent’s estate.

(10) An interest in property that is the subject of a nonprobate transfer on death under Part 1 (commencing with Section 5000) of Division 5.

See California Probate Code § 141.

A waiver of “all rights” or equivalent language in the property or estate of a present or prospective spouse, or a complete property settlement entered into after or in anticipation of separation or dissolution or annulment of marriage, is a waiver by the spouse of the rights listed above and contained in § 141.  See California Probate Code § 145.

What Are The Requirements For A Valid Waiver Of Spousal Rights Under California Law?

A waiver of spousal rights at death made by a surviving spouse must be:

  1. In writing;
  2. Signed by the surviving spouse.

See California Probate Code § 142.

Can A Surviving Spouse Challenge Enforcement Of A Waiver Of Spousal Rights?

Yes, a surviving spouse can challenge the enforcement of a waiver of spousal rights that was signed by the surviving spouse in California probate court.

A waiver of spousal rights in California is not enforceable if:

  1. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided to the surviving spouse prior to the signing of the waiver unless the surviving spouse waived such a fair and reasonable disclosure after advice by independent legal counsel.
  2. The surviving spouse was not represented by independent legal counsel at the time of signing of the waiver.

See California Probate Code § 143.

A waiver of spousal rights in California probate is enforceable if the court determines either of the following:

  1. The waiver at the time of signing made a fair and reasonable disposition of the rights of the surviving spouse.
  2. The surviving spouse had, or reasonably should have had, an adequate knowledge of the property and financial obligations of the decedent and the decedent did not violate the duty imposed by subdivision (b) of Section 721 of the Family Code.

See California Probate Code § 144.

Section 721 of the California Family Code relates to the fiduciary relationship between a husband and a wife (fair dealing) and states:

(a) Subject to subdivision (b), either spouse may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.

(b) Except as provided in Sections 143, 144, 146, 16040, 16047, and 21385 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:

(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.

(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.

(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.


Unconscionability of Enforcing Waiver of Spousal Rights

The court can also refuse to enforce a waiver of spousal rights under the California Probate Code if “after considering all of the relevant facts and circumstances, the court finds that enforcement of the waiver pursuant to subdivision (a) [of § 144] would be unconscionable under the circumstances existing at the time enforcement is sought…”

The court can refuse to enforce the waiver, enforce the remainder of the waiver without the unconscionable provisions, or limit the application of the unconscionable provisions to avoid an unconscionable result.

A California probate lawyer can advise you as to the validity of a waiver of spousal rights in California probate.

Andrew S. Gold, Esq.

Probate & Trust Litigation

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