Metropolitan News-Enterprise


Monday, December 17, 2012


Page 1


Court of Appeal Says Estate Waiver Survived Same-Sex Marriage




A man who waived any interest in his partner’s future property, prior to their marrying during the brief period that same-sex marriage was legal in California, could not claim to be a pretermitted spouse, the First District Court of Appeal has ruled.

Div. Two Thursday affirmed a San Francisco Superior Court judge’s ruling denying Antipas Konou’s omitted spouse petition against the estate of Philip Timothy Wilson.

Judge Mary Wiss ruled, following a bifurcated trial on largely uncontested facts, that a mutual waiver that Wilson and Konou signed just before they registered with the state as domestic partners in 2006 remained enforceable after they married in 2008.

Wilson, a psychiatrist employed by the state, executed a will in 1986, leaving part of his estate to his then-partner Douglas Vanderburg and the rest to his four siblings. While the state did not have a domestic partnership law at the time, Wilson and his partner were registered with the City and County of San Francisco; they dissolved the partnership in 1993.

New Relationship

Wilson and Konou—who had recently been released from prison and who worked for an antique book dealer—began dating in 2005, six years after California enacted its first Domestic Partnership Act. They registered as domestic partners in May 2006.

Eight days prior to registering, the couple and their separate counsel signed an agreement containing an express waiver of “any rights, claims or interest whatsoever in law or equity in the present or future property, income, or estate of the other, or to a right to receive support or any other payments of any kind from the other.”

The agreement also included financial disclosures, acknowledgments that each of the partners had discussed the agreement with his attorney, an integration clause, and a prohibition against termination or amendment of the agreement absent “a new and separate written agreement.”

Right to Marry

Konou and Wilson were among about 18,000 same-sex couples who married in California between June 2008—when the state Supreme Court ruled that denying same-sex couples that right deprived them of equal protection of the laws—and November of that year, when Proposition 8 was approved by voters. Wilson committed suicide Nov. 6 of that year.

Wilson’s former partner disclaimed any interest in the estate, while his siblings opposed Konou’s petition under Probate Code Sec. 21610. The statute provides that a pretermitted spouse—the survivor of a deceased spouse who executed his or her last will before the couple married—receives a specified share of the estate unless an exception applies.

The parties stipulated that Konou was a pretermitted spouse, but the siblings argued that the Sec. 21611 exception—denying the pretermitted spouse a share if he or she entered into “a valid agreement waiving the right to share in the…estate”—applied.

Exception Applied

Justice James Lambden, writing for the Court of Appeal, agreed with the trial judge that the exception applied, rejecting Konou’s contention that the marriage terminated the domestic partnership and gave him additional rights, including rights under Sec. 21610 that were not subject to the Sec. 21611 exception.

Noting that neither the domestic partnership agreement, nor the domestic partnership itself, was ever terminated by the parties, the justice wrote:

“The law is well settled that a marriage license does not invalidate a prenuptial agreement.  Parties contemplating marriage may validly contract as to their property rights, both as to property then owned and as to property and earnings that may be acquired during the marriage….Similarly, a domestic partnership agreement remains valid after the parties register as domestic partners.  The fact that one agreement is named a domestic partnership agreement and another is named a prenuptial agreement is insignificant as the purpose of both is to permit the parties to enter into a contract that reflects their wishes regarding the property they own and will acquire in the future.  A marriage by a same-sex couple in 2008 after the couple had previously registered their domestic partnership did not provide the couple with any additional state property rights or obligations. “

The case is Estate of Wilson, 12 S.O.S. 6480.  


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