2015 California Code
Probate Code - PROB
DIVISION 5 - NONPROBATE TRANSFERS
PART 1 - PROVISIONS RELATING TO EFFECT OF DEATH
CHAPTER 3 - Nonprobate Transfer to Former Spouse
Section 5040.

CA Prob Code § 5040 through (2015) Leg Sess What's This?

5040. (a) Except as provided in subdivision (b), a nonprobate transfer to the transferor s former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferor s death, the former spouse is not the transferor s surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.

(b) Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:

(1) The nonprobate transfer is not subject to revocation by the transferor at the time of the transferor s death.

(2) There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.

(3) A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferor s death.

(c) Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.

(d) Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.

(e) As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:

(1) A provision of a type described in Section 5000.

(2) A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.

(Added by renumbering Section 5600 by Stats. 2015, Ch. 293, Sec. 12. Effective January 1, 2016.)

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