Trusts and Estates

Welch v. Welch

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Cite as B311507
Filed May 31, 2022, Second District, Div. Five

By Jaime B. Herren
Holland & Knight LLP

Headnote: Death During Divorce – Interpretation of Complete Property Settlement

Summary: Party may waive rights as surviving spouse by agreement if circumstances indicate the parties intended it to be a complete property settlement.

Patricia died amid dissolution proceedings with her husband Freeman.  Prior to her death, the couple executed a predominantly handwritten marital settlement agreement (MSA).  It was submitted to the family court by Freeman as part of his proposed judgment.  Before its entry, Patricia died.  Unaware of her death, the family court entered judgment dissolving the marriage and distributing property.  Nearly two years later the appellate court voided, vacated, and set aside the judgment because the family court had lost jurisdiction upon Patricia’s death.  Thereafter, in probate court, Brendon, one of the couple’s sons, filed a Probate Code section 850 Petition seeking, among other things, to enforce Freeman’s waiver in the MSA of his rights as a surviving spouse.  The probate court denied Brendon’s 850 Petition and petition for letters, and granted Freeman’s petition for probate.

The appellate court reversed.  In considering whether the MSA waived Freeman’s rights as a surviving spouse, the court found the parties intended it to be a complete property settlement, which by statute was a waiver of all rights Freeman had in Patricia’s estate.  In interpreting a property settlement that was never entered as part of a judgment, the court must consider the totality of the circumstances and may look to extrinsic evidence such as conduct and intent of the parties.  The parties are not required to identify their property settlement as “partial” or “complete,” or to use any specific language to achieve statutory waiver.

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