Part IV - The Omitted Spouse

Continuing our blog on the omitted spouse and specifically, the Estate of Will (170 Cal.App.4th 902 (2009)), Gertrude appealed the probate court''s decision to honor the prenuptial agreement and prevent Gertrude from obtaining a share of Ted Will's (decedent) estate. Gertrude contended that the inheritance waiver is unenforceable because the prenuptial agreement did not comply with Family Code section 1615.

The Court of Appeal affirmed the probate court's order stating that section 21611, subdivision (c) of the Probate Code allows the waiver of inheritance rights. The Court further stated that "although public policy discourages a testator's failure to provide for a surviving spouse, it does not nullify that failure when the testator and spouse have mutually contracted to waive such provision."

Additionally, the omission of premarital inheritance waivers by surviving spouses in Family Code section 1615 implies that the Legislature intended omitted spouse waivers to be governed independently by the Probate Code. Since Gertrude's waiver complies with pertinent provisions of the Probate Code, the Court of Appeal then affirmed the probate court's order.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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