A Waiver of Spousal Rights Is Valid Under Section 142 of the California Probate Code

  • The waiver of spousal rights must be in writing.
  • The waiver of spousal rights must be signed by the surviving spouse.

Estate Assets and Spousal Waivers

A waiver of spousal rights is a contractual agreement that negates a surviving spouse’s rights to the following:

  1. Property that would have passed to the surviving spouse through intestate succession
  2. Property that would have passed from the decedent to the surviving spouse by a will executed before the waiver
  3. A homestead
  4. The right to exempt certain properties set aside
  5. Family allowances
  6. The right to set an estate aside from Chapter 6 of the Probate Code
  7. The right to claim community or quasi-community property against the deceased person’s will
  8. The right to petition for inheritance if they were not included in a will
  9. The right to be appointed or to serve as the executor of the deceased person’s estate
  10. An interest in some non-probate property transfers

Challenging the Enforcement of a Waiver of Spousal Rights

A waiver of spousal rights can be challenged under certain circumstances. A probate court may find the waiver invalid or unenforceable if:

  • The deceased spouse did not make a fair and reasonable disclosure of their financial obligations and estate assets prior to the signing of the waiver.
  • The surviving spouse did not retain or consult competent legal counsel before consenting to the waiver.

The California Probate Code also allows the courts to exercise some discretion in choosing whether to enforce a waiver of spousal rights. A judge may find a waiver unenforceable if, for instance, the enforcement of such a waiver could significantly harm the interests and rights of the surviving spouse.

Contact an Experienced California Estate Planning Attorney Today

California couples may choose to relinquish their spousal rights to an estate for a wide range of reasons. However, any waiver of spousal rights could be found unenforceable if the probate court finds it was not executed in good faith. If a waiver is found invalid, the spouse may assert their inheritance rights, even at the expense of the deceased person’s biological children.

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.