Metropolitan News-Enterprise


Thursday, January 29, 2009


Page 1


Court of Appeal Upholds Waiver of Inheritance Rights




A waiver of inheritance rights that complies with the provisions of the Probate Code is enforceable even if it is contained within a prenuptial agreement that would not be enforceable independently, the Court of Appeal for this district has ruled.

Div. Six Tuesday affirmed Ventura Superior Court Judge Kent Kellegrew’s order determining that Gertrude Will was not entitled to a share of her late husband’s estate.

The judge denied Will’s petition for a one-third interest in the estate and in a trust, to which Will claimed entitlement as an omitted spouse under Probate Code Sec. 21610(c). The administrator and trustee responded that Will had waived those rights in writing.

Evidence showed that Ted Will married the former Gertrude Fochs when both were in their 80s and had adult children, that Gertrude Will was suffering from lung cancer and was not expected to survive her new husband, and that Ted Will wanted to help her obtain medical insurance and treatment.

The Wills signed a prenuptial agreement one day prior to marrying in 2003, in which each purported to waive any interest in community property and any right to inherit from the other. While each party’s separate property would pass to his or her children, the agreement provided, Gertrude Will could live in her husband’s home for five years after his death.

Ted Will died two years after the parties married. He had not amended his 1980 will and trust and had not executed a new will after marrying.

In seeking an interest in the estate, Gertrude Will asserted that the provisions of the prenuptial agreement, including her waiver of inheritance rights, were invalid under Family Code Sec. 1615(c). The law says that for a prenuptial agreement to be enforceable, the party against whom enforcement is sought must have been advised of the right to independent counsel and given seven days’ advance notice of the agreement and a separate written explanation of the rights being relinquished.

The estate administrator conceded those requirements were not met, but contended the waiver was separately enforceable under Probate Code Secs. 140 to 147. Those sections permit waivers of inheritance rights by persons who intend to marry, provided that the waiver is in writing and signed by the waiving party; that the disposition of the property is fair and reasonable, or is made with adequate knowledge of the property; and that the decedent did not violate any fiduciary duty.

Kellegrew agreed that Gertrude Will had entered into an enforceable waiver of inheritance rights under the Probate Code. He found that Ted Will made fair and reasonable provisions for his wife, that she knew the nature and extent of his finances at the time, and that it would be inequitable not to honor the waiver.

Gertrude Will died while her appeal from Kellegrew’s order was pending. The Court of Appeal allowed her daughter and trustee to substitute as the appellant, making the dispute one between Ted and Gertrude Will’s heirs.

Presiding Justice Arthur Gilbert, writing for the Court of Appeal, rejected the contention that the Family Code section is a more specific provision that takes precedence over the more general, and previously enacted, Probate Code provisions.

The Legislature’s omission of any discussion of the Probate Code sections when it enacted Sec. 1615, Gilbert wrote, implies that it intended those sections to continue to govern waivers of inheritance rights. Nor are the provisions “inconsistent or irreconcilable that they cannot have concurrent operation,” the presiding justice added.

“Each scheme primarily concerns fair and reasonable disclosure of property at the time the premarital agreement or inheritance waiver was executed,”   Gilbert explained. “The statutory framework of the Family Code and the Probate Code concerning inheritance waivers seeks to safeguard the rights of surviving spouses by similar disclosures and protections.”

The case is Estate of Will, 09 S.O.S. 571.


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