Code Section Group

Probate Code - PROB

DIVISION 5. NONPROBATE TRANSFERS [5000 - 5705]

  ( Division 5 enacted by Stats. 1990, Ch. 79. )

PART 1. PROVISIONS RELATING TO EFFECT OF DEATH [5000 - 5048]

  ( Part 1 enacted by Stats. 1990, Ch. 79. )

CHAPTER 3. Nonprobate Transfer to Former Spouse [5040 - 5048]
  ( Chapter 3 heading added by Stats. 2015, Ch. 293, Sec. 11. )

5040.
  

(a) Except as provided in subdivision (b), a nonprobate transfer to the transferor’s former spouse, in an instrument executed by the transferor before or during the marriage or registered domestic partnership, fails if, at the time of the transferor’s death, the former spouse is not the transferor’s surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage or termination of registered domestic partnership. A judgment of legal separation that does not terminate the status of spouses is not a dissolution for purposes of this section.

(b) Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:

(1) The nonprobate transfer is not subject to revocation by the transferor at the time of the transferor’s death.

(2) There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.

(3) A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferor’s death.

(c) Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.

(d) Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.

(e) As used in this section, “nonprobate transfer” means a provision, other than a provision of a life insurance policy, of either of the following types:

(1) A provision of a type described in Section 5000.

(2) A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.

(Amended by Stats. 2016, Ch. 50, Sec. 83. (SB 1005) Effective January 1, 2017.)

5042.
  

(a) Except as provided in subdivision (b), a joint tenancy between the decedent and the decedent’s former spouse, created before or during the marriage or registered domestic partnership, is severed as to the decedent’s interest if, at the time of the decedent’s death, the former spouse is not the decedent’s surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage or registered domestic partnership. A judgment of legal separation that does not terminate the status of spouses is not a dissolution for purposes of this section.

(b) Subdivision (a) does not sever a joint tenancy in either of the following cases:

(1) The joint tenancy is not subject to severance by the decedent at the time of the decedent’s death.

(2) There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.

(c) Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.

(d) For purposes of this section, property held in “joint tenancy” includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.

(Amended by Stats. 2016, Ch. 50, Sec. 84. (SB 1005) Effective January 1, 2017.)

5044.
  

(a) Nothing in this chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:

(1) The name of the decedent.

(2) The date and place of the decedent’s death.

(3) A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.

(4) Either of the following, as appropriate:

(A) The affiant or declarant is the surviving spouse of the decedent.

(B) The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5040 or 5042.

(b) A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.

(c) An affidavit or declaration made pursuant to subdivision (a) may be recorded.

(Added by renumbering Section 5602 by Stats. 2015, Ch. 293, Sec. 14. (AB 139) Effective January 1, 2016.)

5046.
  

Nothing in this chapter is intended to limit the court’s authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this chapter, or to preserve a joint tenancy in favor of the former spouse.

(Added by renumbering Section 5603 by Stats. 2015, Ch. 293, Sec. 15. (AB 139) Effective January 1, 2016.)

5048.
  

(a) This chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.

(b) Except as provided in subdivision (c), this chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this chapter.

(c) Sections 5040 and 5042 do not apply, and the applicable law in effect before the operative date of this chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:

(1) The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this chapter.

(2) The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this chapter.

(Added by renumbering Section 5604 by Stats. 2015, Ch. 293, Sec. 16. (AB 139) Effective January 1, 2016.)

PROBProbate Code - PROB