Postnuptial Agreement

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POSTNUPTIAL AGREEMENT LAWYER SAN DIEGO

Postnuptial agreements are subject to the general rules governing the actions of persons standing in a “confidential relationship,” spouses in an ongoing marriage may enter into any transaction or agreement with each other as they might if unmarried. [Fam.C. § 721(a) & (b)] So long as the subject is “lawful,” spouses may make enforceable marital agreements for a variety of reasons. Often, the objectives are similar to those of parties to a premarital agreement.

A common purpose of marital agreements is to modify or prevent the application of California community property law to all or some portion of the spouses’ property or income (Fam.C. § 1500) or to change the character of their property from community property to separate property or vice versa (“transmutation” agreements, Fam.C. § 850 et seq.; and see Balkema v. Deiches (1949) 90 CA2d 427, 430, 202 P2d 1068, 1069-1070;Tompkins v. Bishop (1949) 94 CA2d 546, 550, 211 P2d 14, 16).

OTHER PURPOSES OF A POSTNUPTIAL AGREEMENT

A related purpose of postnuptial agreements is to preserve the estate of a spouse intact for his or her heirs and free from succession claims of the surviving spouse. [Prob.C. §§ 140-147, ; see, e.g., Tompkins v. Bishop, supra, 94 CA2d at 550, 211 P2d at 16—spouse’s marital contract waiver of all property and inheritance rights in other spouse’s estate held controlling in quiet title action between waiving spouse and children of predeceased spouse by former marriage]

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