2018 California Code
Probate Code - PROB
DIVISION 2 - GENERAL PROVISIONS
PART 3 - CONTRACTUAL ARRANGEMENTS RELATING TO RIGHTS AT DEATH
CHAPTER 1 - Surviving Spouse’s Waiver of Rights
(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.
(Amended by Stats. 1992, Ch. 163, Sec. 122. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.)