SECTIONS 140-147 - California Statutes

PROBATE CODE

SECTION 140-147

140. As used in this chapter, "waiver" means a waiver by the
surviving spouse of any of the rights listed in subdivision (a) of
Section 141, whether signed before or during marriage.

141. (a) The right of a surviving spouse to any of the following
may be waived in whole or in part by a waiver under this chapter:
(1) Property that would pass from the decedent by intestate
succession.
(2) Property that would pass from the decedent by testamentary
disposition in a will executed before the waiver.
(3) A probate homestead.
(4) The right to have exempt property set aside.
(5) Family allowance.
(6) The right to have an estate set aside under Chapter 6
(commencing with Section 6600) of Part 3 of Division 6.
(7) The right to elect to take community or quasi-community
property against the decedent's will.
(8) The right to take the statutory share of an omitted spouse.
(9) The right to be appointed as the personal representative of
the decedent's estate.
(10) An interest in property that is the subject of a nonprobate
transfer on death under Part 1 (commencing with Section 5000) of
Division 5.
(b) Nothing in this chapter affects or limits the waiver or manner
of waiver of rights other than those referred to in subdivision (a),
including, but not limited to, the right to property that would pass
from the decedent to the surviving spouse by nonprobate transfer
upon the death of the decedent, such as the survivorship interest
under a joint tenancy, a Totten trust account, or a pay-on-death
account.

142. (a) A waiver under this chapter shall be in writing and shall
be signed by the surviving spouse.
(b) Subject to subdivision (c), a waiver under this chapter is
enforceable only if it satisfies the requirements of subdivision (a)
and is enforceable under either Section 143 or Section 144.
(c) Enforcement of the waiver against the surviving spouse is
subject to the same defenses as enforcement of a contract, except
that:
(1) Lack of consideration is not a defense to enforcement of the
waiver.
(2) A minor intending to marry may make a waiver under this
chapter as if married, but the waiver becomes effective only upon the
marriage.

143. (a) Subject to Section 142, a waiver is enforceable under this
section unless the surviving spouse proves either of the following:
(1) A fair and reasonable disclosure of the property or financial
obligations of the decedent was not provided to the surviving spouse
prior to the signing of the waiver unless the surviving spouse waived
such a fair and reasonable disclosure after advice by independent
legal counsel.
(2) The surviving spouse was not represented by independent legal
counsel at the time of signing of the waiver.
(b) Subdivision (b) of Section 721 of the Family Code does not
apply if the waiver is enforceable under this section.

144. (a) Except as provided in subdivision (b), subject to Section
142, a waiver is enforceable under this section if the court
determines either of the following:
(1) The waiver at the time of signing made a fair and reasonable
disposition of the rights of the surviving spouse.
(2) The surviving spouse had, or reasonably should have had, an
adequate knowledge of the property and financial obligations of the
decedent and the decedent did not violate the duty imposed by
subdivision (b) of Section 721 of the Family Code.
(b) If, after considering all relevant facts and circumstances,
the court finds that enforcement of the waiver pursuant to
subdivision (a) would be unconscionable under the circumstances
existing at the time enforcement is sought, the court may refuse to
enforce the waiver, enforce the remainder of the waiver without the
unconscionable provisions, or limit the application of the
unconscionable provisions to avoid an unconscionable result.
(c) Except as provided in paragraph (2) of subdivision (a),
subdivision (b) of Section 721 of the Family Code does not apply if
the waiver is enforceable under this section.

145. Unless the waiver or property settlement provides to the
contrary, a waiver under this chapter of "all rights" (or equivalent
language) in the property or estate of a present or prospective
spouse, or a complete property settlement entered into after or in
anticipation of separation or dissolution or annulment of marriage,
is a waiver by the spouse of the rights described in subdivision (a)
of Section 141.

146. (a) As used in this section, "agreement" means a written
agreement signed by each spouse or prospective spouse altering,
amending, or revoking a waiver under this chapter.
(b) Except as provided in subdivisions (c) and (d) of Section 147,
unless the waiver specifically otherwise provides, a waiver under
this chapter may not be altered, amended, or revoked except by a
subsequent written agreement signed by each spouse or prospective
spouse.
(c) Subject to subdivision (d), the agreement is enforceable only
if it satisfies the requirements of subdivision (b) and is
enforceable under either subdivision (e) or subdivision (f).
(d) Enforcement of the agreement against a party to the agreement
is subject to the same defenses as enforcement of any other contract,
except that:
(1) Lack of consideration is not a defense to enforcement of the
agreement.
(2) A minor intending to marry may enter into the agreement as if
married, but the agreement becomes effective only upon the marriage.
(e) Subject to subdivision (d), an agreement is enforceable under
this subdivision unless the party to the agreement against whom
enforcement is sought proves either of the following:
(1) A fair and reasonable disclosure of the property or financial
obligations of the other spouse was not provided to the spouse
against whom enforcement is sought prior to the signing of the
agreement unless the spouse against whom enforcement is sought waived
such a fair and reasonable disclosure after advice by independent
legal counsel.
(2) The spouse against whom enforcement is sought was not
represented by independent legal counsel at the time of signing of
the agreement.
(f) Subject to subdivisions (d) and (g), an agreement is
enforceable under this subdivision if the court determines that the
agreement at the time of signing made a fair and reasonable
disposition of the rights of the spouses.
(g) If, after considering all relevant facts and circumstances,
the court finds that enforcement of the agreement pursuant to
subdivision (f) would be unconscionable under the circumstances
existing at the time enforcement is sought, the court may refuse to
enforce the agreement, enforce the remainder of the agreement without
the unconscionable provisions, or limit the application of the
unconscionable provisions to avoid an unconscionable result.
(h) Subdivision (b) of Section 721 of the Family Code does not
apply if the agreement is enforceable under this section.

147. (a) Subject to subdivisions (c) and (d), a waiver, agreement,
or property settlement made after December 31, 1984, is invalid
insofar as it affects the rights listed in subdivision (a) of Section
141 unless it satisfies the requirements of this chapter.
(b) Nothing in this chapter affects the validity or effect of any
waiver, agreement, or property settlement made prior to January 1,
1985, and the validity and effect of such waiver, agreement, or
property settlement shall continue to be determined by the law
applicable to the waiver, agreement, or settlement prior to January
1, 1985.
(c) Nothing in this chapter affects the validity or effect of any
premarital property agreement, whether made prior to, on, or after
January 1, 1985, insofar as the premarital property agreement affects
the rights listed in subdivision (a) of Section 141, and the
validity and effect of such premarital property agreement shall be
determined by the law otherwise applicable to the premarital property
agreement. Nothing in this subdivision limits the enforceability
under this chapter of a waiver made under this chapter by a person
intending to marry that is otherwise enforceable under this chapter.
(d) Nothing in this chapter limits any right one spouse otherwise
has to revoke a consent or election to disposition of his or her half
of the community or quasi-community property under the will of the
other spouse.