Marriage confers important rights and obligations on spouses. One of the rights is that of the surviving spouse’s rights in the deceased spouse’s estate. In California, couples prior to marriage and during marriage can agree that the surviving spouse waive certain inheritance rights in a deceased spouse’s estate (Probate Code sections 141-147). Upon divorce, a surviving ex-spouse is presumed by California law to have predeceased the former spouse for purposes of inheritance rights.

A waiver in advance of a spouse’s death of surviving spouse’s rights in the deceased spouse’s estate could be agreed-upon by married persons who are dissolving their marriage or who are in (or going into) second marriages and want to protect their own children’s inheritances.

Section 141 of the Probate Code states ten different ten important rights in the deceased spouse’s estate that a surviving spouse may waive, either in whole or in part.

Such spousal rights include the important right to inherit as an heir by intestate succession (if the deceased spouse had no will); the right to inherit as a beneficiary under the deceased spouse’s will executed before the waiver; the right to reside in a probate homestead; the right to a Family allowance for the surviving spouse to live; the right to take the statutory share of an omitted spouse when the deceased spouse’s will does not acknowledge the surviving spouse; and the right to be appointed as the personal representative of the decedent’s estate.

To be valid the waiver must be in writing and be signed by the surviving spouse. The waiver can either be created by an express waiver of “all rights” (such as in a pre or post marital agreement) or by a complete property settlement entered into after or in anticipation of separation or dissolution or annulment of marriage (section 145 Probate Code).

In Brendon Welch, et. al., v. Freeman H. Welch (Second Appellate District, B311507) the court enforced a waiver in marital property agreement that was reached in a mediation conference within a dissolution court proceeding. Before the court ordered distribution of the property, the family court lost its jurisdiction when the wife died. However, the probate court found that because there was a complete settlement in anticipation of dissolution of marriage the spousal waiver in the agreement was enforceable.

A signed waiver is enforceable against the surviving spouse if the surviving spouse both received fair and reasonable disclosure of the property and financial obligations of the deceased spouse (unless waived after advice of the surviving spouse’s independent counsel) and the surviving spouse was represented by independent counsel. This is to be completely fair to the surviving spouse.

An otherwise unenforceable waiver may sometimes still be enforceable at the discretion of a court. That is, if the court finds that the waiver was fair and reasonable to the surviving spouse’s rights at the time it was signed. Or, if the court finds that the surviving spouse knew (or reasonably should have known) about the property and financial obligations of the deceased spouse; provided, however, that the deceased spouse did not violate his or her spousal duty of the utmost fair dealing with the surviving spouse.

Still, a court in exercising its discretion whether to enforce a waiver, under the exception, must also consider all relevant facts and circumstances surrounding the original signing of the waiver and determine if it would be unconscionable at time of its enforcement. If it would now be unconscionable at time of enforcement then the court has the following options: Not to the enforce the waiver; not to enforce the unconscionable part of the surviving spouse’s waiver; or partially not enforce the unconscionable part and so avoid the unconscionable result.

The foregoing discussion shows how estate planning and family law intersect at the planning cross roads regarding the surviving spouse’s rights in the deceased spouse’s estate. The foregoing discussion is not legal advice. Consult a qualified attorney if engaged in such planning. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”