Law School Case Brief
Estate of Will - 170 Cal. App. 4th 902, 88 Cal. Rptr. 3d 502 (2009)
In enacting Fam. Code § 1615, the legislature did not mention the Probate Code, § 140 et seq., regarding premarital inheritance waivers by surviving spouses. This omission implies that the legislature intended that omitted spouse waivers continue to be governed independently by the Probate Code. Moreover, the two statutory schemes are not so inconsistent or irreconcilable that they cannot have concurrent operation. Each scheme primarily concerns fair and reasonable disclosure of property at the time the premarital agreement or inheritance waiver was executed. 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.
In 1980, Ted Will executed a will and trust, declaring himself divorced and had five children, including respondent Lori Tinsley. Ted Will reconnected with Gertrude Fochs, and they decided to marry. Ted presented Gertrude with a prenuptial agreement which stated that Ted and Gertrude waived their respective community property interests and inheritance rights in each other's property. It also provided that the separate property of each party would pass to his or her children. Thereafter, Ted and Gertrude married. Ted died, leaving Gertrude the survivor. He had not amended his 1980 will and trust nor had he executed another will and trust after his marriage. Gertrude later filed a petition in the probate of Ted's estate contending that she was an omitted spouse. She sought a one-third statutory interest in Ted's trust and estate pursuant to the Probate Code. Gertrude asserted that the prenuptial agreement was unenforceable because it did not comply with the specific requirements of Family Code § 1615 concerning advice of independent counsel, seven days' advance notice of the agreement, and a separate written explanation of property rights relinquished. The probate court determined that the prenuptial agreement was independently enforceable pursuant to Probate Code. The probate court then concluded that Gertrude was not entitled to a statutory share of Ted's trust or estate. Carol Anderson, trustee of the Gertrude Will Revocable Trust, appealed the decision of the probate court. On appeal, it was argued that the more specific provisions of Family Code § 1615 controlled over the provisions of the Probate Code regarding inheritance waivers.
Was the waiver under the prenuptial agreement between Ted and Gertrude valid and enforceable, which denied Gertrude the statutory interest in Ted’s estate under the Probate Code?
The court ruled against appellant Gertrude and affirmed the probate court order. The Probate Code, § 140 et seq., concerned a surviving spouse's waiver of inheritance rights. The waiver was in writing, was signed by the widow, and complied with the requirements of Prob. Code, § 144. In enacting Fam. Code, § 1615, the legislature did not mention Prob. Code, § 140 et seq., regarding premarital inheritance waivers by surviving spouses. This omission implied that the legislature intended that omitted spouse waivers would continue to be governed independently by the Probate Code rather than by the Family Code. Moreover, the two statutory schemes were not so inconsistent or irreconcilable that they could not have concurrent operation. The court added that although the trustee Carol, in her reply brief, raised issued regarding the interpretation of the prenuptial agreement, the court did not discuss these issues because they were not presented to the probate court nor discussed in the opening brief.
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