California Pre/Post Marital Agreements – July 2005 Summary

Legal Developments

An additional advantage of a PMA is the ability to protect one party from his or her spouse’s attempts to set aside gifts that the party may have made to children or other third parties

In Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 13 Cal.Rptr.3d 240, the husband transferred approximately 40% of the parties’ community property into bank accounts payable on his death to third parties.  Despite the fact that his widow received over 60% of the total community property, she was still able to set aside one half of the gifts that her deceased husband had made to third parties.  Question 1. 

Rosendale pending before Supreme Court

In In re Marriage of Rosendale (2004) 119 Cal.App.4th 1202, 15 Cal.Rptr.3d 137, the Court of Appeal interpreted a provision for a payment on dissolution as being unrelated to spousal support and not a lump sum intended as an "alternative" method of providing spousal support.  The court also addressed the retroactivity of Pendleton & Fireman and the effect of the 2002 amendment to Fam. Code §1612.  The Supreme Court granted review on October 13, 2004 and the Court of Appeal opinion has been depublished.  Questions 1, 194, 370, 389, 390, 391, 392, 393, 394 and 396.

Fam. Code §2640 (c) provides for reimbursement for a spouse's separate property contributions to the acquisition or improvement of the other spouse's separate property assets with no interest or adjustment for increases in value

This provision became operative January 1, 2005 and prospectively overrules a body of case law that provided that using one's separate property to acquire or improve the other party's separate property was presumptively a gift. New Question 203. See Updated Product Features below.

Updated Product Features

New ability to specify reimbursement for a spouse's separate property contributions to the acquisition or improvement of the other spouse's separate property

You may now specify the terms for reimbursement for a spouse's separate property contributions to the acquisition or improvement of the other spouse's separate property in light of the new provisions of Fam. Code §2640 (c).  New Questions 203, 204, 205, 206, 207 and 208.

New ability to specify whether and when the parties are expecting a child

You may now specify whether the parties are expecting a child and, if so, the expected due date.   If so specified the agreement will include language as follows: “<Wife> is pregnant with our child.  We anticipate her giving birth approximately <expected due date>.  Her pregnancy is not a factor in our executing this Agreement.”  Question 71 and New Question 118.