Can a Marital Settlement Agreement Waive Spousal Rights After Death? What California Residents Need to Know About Welch v. Welch

Can a Marital Settlement Agreement Waive Spousal Rights After Death? What California Residents Need to Know About Welch v. Welch

If you’re going through a divorce in California or creating an estate plan after remarriage, understanding how marital settlement agreements affect inheritance rights is critical—especially when death occurs before divorce is finalized.

Who This Article Is For

This case matters if you are:

A California resident navigating divorce while managing significant assets

Someone worried about protecting your children’s inheritance if your spouse dies during divorce proceedings

A surviving spouse uncertain about your rights when divorce was pending at the time of death

An executor or trustee dealing with conflicting claims between a surviving spouse and adult children

The Key Question: Can You Waive Inheritance Rights Through a Divorce Settlement?

Yes. According to the California Court of Appeal’s decision in Welch v. Welch (Case No. B311507, filed May 31, 2022), a party may waive their rights as a surviving spouse through a marital settlement agreement if the circumstances indicate the parties intended it to be a complete property settlement.

What Happened in Welch v. Welch?

Patricia and Freeman Welch were in the middle of divorce proceedings when Patricia died unexpectedly. Before her death, they had executed a predominantly handwritten marital settlement agreement (MSA) that Freeman submitted to the family court as part of his proposed judgment.

Here’s the timeline that created the legal confusion:

The couple signed the MSA

Patricia died before the court entered judgment

Unaware of her death, the family court entered judgment dissolving the marriage

Nearly two years later, the appellate court voided the judgment because the family court lost jurisdiction when Patricia died

Brendon, one of their sons, filed a petition in probate court to enforce Freeman’s waiver of spousal rights in the MSA

The Court’s Ruling: Intent Matters More Than Specific Language

The appellate court reversed the probate court’s decision and sided with the son. The court found that the parties intended the MSA to be a complete property settlement, which by California statute constitutes a waiver of all rights Freeman had in Patricia’s estate.

Critically, the court established that:

Parties are not required to label their settlement as “partial” or “complete”

No specific legal language is needed to achieve statutory waiver

Courts must consider the totality of circumstances and may look at extrinsic evidence like the conduct and intent of the parties

Why This Case Matters for California Families

This ruling has significant implications for:

Divorcing spouses: If you die before your divorce is finalized, your marital settlement agreement may still determine what your spouse receives—even if the court never entered a final judgment. Your spouse could be prevented from claiming spousal inheritance rights if the agreement shows you both intended a complete division of property.

Blended families: Adult children from prior relationships have legal standing to enforce waivers in marital settlement agreements to protect their inheritance when a parent dies during divorce.

Estate planning clients: If you’re remarried and going through divorce, your existing estate plan may conflict with your marital settlement agreement. Both documents need to work together to protect your intended beneficiaries.

How to Protect Your Family When Divorce and Death Intersect

California residents facing divorce should take these steps to avoid costly probate litigation:

Make your intent clear in writing: While the court says you don’t need specific language, explicitly stating whether your settlement is “complete” or “partial” eliminates ambiguity

Update your estate plan immediately: Don’t wait until divorce is finalized to revise your will or trust

Document all property agreements: Even handwritten agreements can be enforceable, but detailed documentation of what you’re each keeping and waiving is essential

Consider what happens if you die during proceedings: Include provisions in your MSA that specifically address death before judgment

The Bottom Line

The Welch v. Welch decision from California’s Second District Court of Appeal confirms that marital settlement agreements can effectively waive spousal inheritance rights—even when divorce isn’t finalized—if the totality of circumstances shows the parties intended a complete property division.

For California families managing divorce, estate planning, or both simultaneously, this case underscores the importance of coordinating your legal documents and making your intentions crystal clear.

Need Help Protecting Your Family During Divorce or Estate Planning?

At California Probate and Trust, PC, we help California residents navigate the complex intersection of family law and estate planning. Whether you’re going through divorce, updating your estate plan after remarriage, or dealing with probate litigation involving spousal rights, our experienced attorneys provide the transparency and family protection you need.

We offer free consultations to assess your situation and develop a clear plan that protects your assets and your loved ones—no matter what life brings.

Schedule your free consultation today at cpt.law or call (866) 674-1130.

Case Information

Case name: Welch v. Welch

Case number: B311507

Court: California Court of Appeal, Second District, Division Five

Filed: May 31, 2022

Full opinion: Read the complete Second District opinion

Source: California Lawyers Association – Welch v. Welch