May 27, 2022

Premarital Agreement and Probate

A premarital agreement is typically written in case of a divorce. For example, spouses can agree that property acquired during the marriage is to be the separate property of the acquiring spouse. This would be in contrast to the presumption that property acquired during marriage is community property. If a divorce were to occur, there would be no division of community property amongst the spouses because the premarital agreement (also known as a prenuptial agreement) would prevent the creation of community property. Of note, separate property is entirely awarded to the acquiring spouse upon divorce. As can be inferred, the intent of a premarital agreement is to prevent, or lessen, disputes regarding the division of property upon divorce.

A premarital agreement can also address property division in the case of death. For instance, the parties can waive any interest they have in the other's estate. This is in contrast to the general rule that a spouse has an interest in a deceased spouse's estate.

A recent published appellate opinion addressed the issue of one spouse attempting to rescind a premarital agreement based upon mistake. The spouse sought appointment as the personal representative of the deceased spouse's estate.

"In April 2015, shortly before their wedding date, Brandy learned that Scott wanted a premarital agreement. Brandy engaged the services of attorney Tracy Rain and met with her on April 24. On May 1, Brandy and Scott signed the Agreement at the office of Scott's attorney, Laurence Ross. Mr. Ross was present at the signing, along with a notary, but Ms. Rain was not present."

"In addition, in paragraph 5.01, the Agreement expressly waives on behalf of each party, "all right, claim, or interest, ... that he or she may acquire in the separate property of the other by reason of the marriage."

Following Scott' passing, "Brandy filed a probate petition seeking to be appointed the personal representative of her late husband's estate. The trial court denied her petition based on a premarital agreement (Agreement) that waived Brandy's interests in her husband's separate property, and the court appointed his parents (respondents) co-administrators of the estate."

On appeal, the appellate court affirmed the decision of the trial court.

"Because Brandy failed to read the Agreement and to meet with her attorney to discuss it before signing it, she bore the risk of her mistake and is not entitled to rescission. (See Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 283 (Donovan); Casey v. Proctor (1963) 59 Cal.2d 97 (Casey); Civ. Code, § 1577.)[1] In addition, any error by the trial court in failing to make findings regarding voluntariness required by Family Code section 1615, subdivision (c), was not prejudicial."

Estate of Eskra (2022) ______ Cal.App.4th ______