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Estate of Richard C. Scherer, Deceased. v. Kimberly Scherer

April 11, 2012

ESTATE OF RICHARD C. SCHERER, DECEASED. BARBARA J. SCHERER, PETITIONER AND APPELLANT,
v.
KIMBERLY SCHERER, CONTESTANT AND RESPONDENT.



(Super. Ct. No. SPR5674)

The opinion of the court was delivered by: Blease , Acting P. J.

Estate of Scherer

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case tenders the question whether a complete property settlement entered into after the dissolution of a marriage waives the right of a spouse to property that would pass pursuant to the terms of a will executed before the settlement but after the dissolution. We hold that in these circumstances the settlement waives the testamentary rights under the will by virtue of the express provisions of Probate Code sections 141 and 145.*fn1

Petitioner Barbara Scherer appeals from an order denying her petition to probate her former husband Richard Scherer's 1979 will and granting their daughter, contestant Kimberly Scherer's petition to administer the estate.*fn2 (§ 1303.) The trial court ruled that Barbara waived her right to property under the 1979 will by executing a stipulated judgment in 1991 disposing of all remaining property issues between her and Richard where the will was executed after the dissolution of the marriage.

Sections 141 and 145, read together, provide in relevant part that "[u]nless the . . . property settlement provides to the contrary, . . . a complete property settlement entered into after . . . dissolution . . . of marriage, is a waiver by the spouse of" any right to "[p]roperty that would pass from the decedent by testamentary disposition in a will executed before the waiver. . . ." (Italics added.)

The will was executed between the dissolution and the property settlement. Thus, the property settlement prevails over the will since it was entered into after the dissolution and after the execution of the will. Having satisfied theprovisions of the probate code it makes no difference that the will was executed after the dissolution.

We shall conclude that the stipulated judgment between Richard and Barbara constituted a complete property settlement and was an enforceable waiver of Barbara's right to property under the 1979 will.

Accordingly, we shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND*fn3

Richard and Barbara married in 1955 and had seven children, including Kimberly.

In 1978, they initiated divorce proceedings and executed a property settlement agreement. On May 4, 1979, they obtained a decree of divorce as to the marital status only. The property settlement agreement was not incorporated in the final judgment of dissolution, the issue of property rights was bifurcated, and the court retained jurisdiction to divide the marital property.

On May 14, 1979, 10 days after the marital status was terminated, Richard executed a will leaving his entire estate to Barbara.

On February 13, 1985, the trial court ordered that the 1978 property settlement agreement be set aside. Richard appealed, and this court affirmed the trial court's order. Thereafter, the matter was arbitrated, and both parties rejected the arbitrator's award. On October 16, 1990, the trial court entered judgment, and Richard appealed.

On August 16, 1991, an amended judgment was entered. According to the amended judgment, Richard and Barbara, both of whom were represented by separate counsel, stipulated in open court to a specific division of their community property, and a final agreement was executed by the parties in September 1991. The agreement was in the form of a "Stipulated Judgment on Remaining ...


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