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TABLE OF CONTENTS

I. PREnups: Prenuptial/Premarital Agreements

II. POSTnups: Postnuptials/Premarital Agreements

III. PREnups: A More in Depth Look at the Law

IV. POSTnups: A More in Depth Look at the Law

In all the positive emotions leading up to Marriage or a Domestic Partnership, the notion of a Prenuptial Agreement can be an incredibly delicate topic to broach. 

However, a Prenuptial Agreement is a smart, practical move intended to provide a road map to divorce in the event the marriage does not last. If you’ve reached this page in search of answers for your Prenuptial or Postnuptial Agreement, contact our office today to schedule a consultation with our bay area family law attorney.

In a world where planning for the worst in highly encouraged, entering into a Prenuptial Agreement in a prudent move. At Seige Law, we recognize that creating a Prenuptial Agreement can be a difficult and emotional experience for people getting ready for marriage. 

When negotiating a Prenuptial Agreement, you are trying to balance the creation of a meaningful and long lasting intimate relationship while at the same time contemplating how assets and liabilities will be divided in case of divorce.

We also understand that oftentimes if you wait until later, you and your partner may be too estranged, and angry, to rationally undertake the task of negotiating a resolution of your differences after the marriage fails. Therefore, identifying the property brought into the marriage/domestic partnership, how income and assets acquired during the marriage/domestic partnership will be characterized, and who has the legal right to control separate property allows you certainty as you embark on your journey.

A Prenuptial Agreement protects each spouses’ financial assets and property in the event of a legal separatioBBe division of debts, assets (real property and personal property), life insurance, spousal support and many other financial issues on which we must devote keen attention

• The Agreement is fair and does not leave either party without the means for support in the event of a divorce. The Agreement must be free of duress, undue influence, or any type of threat whatsoever
• Our practice isto ensure that once we have negotiated the final draft of the Agreement, that the parties wait an additional seven days before signing the Agreement. This cooling off period gives both parties time to reflect before signing a contract 

Meeting with lawyers and negotiating a Premarital Agreement is an intensely personal decision on your part; however, in our more than 65 years of experience cobined practicing family law, we know of no couple who has regretted having had their Premarital Agreement carefully and thoughtfully prepared.
 

We strongly recommend that our clients give serious consideration to determining the division of income, assets and debts before emotions become provoked and inflamed once the dissolution of the relationship becomes a reality. An improperly drafted Agreement often leads to even more litigation in the future and therefore we strongly recommend that clients’ hire our Firm as we have the experience and compassion to ensure that the Premarital Agreement is through, accurate and most importantly stand the test of time and be deemed legally binding should a party challenge its enforceability at a later date.

At Seige Law our team has a wealth of experience in competently and thoroughly addressing complex financial issues including business and corporate interests, pensions and retirement plans, stock portfolios and real property. We offer knowledgeable and thorough advice to clients who wish to negotiate a Premarital Agreement. Our expertise in complex financial matters ensures that we will diligently verify both parties’ assets and debts and draft Agreements that best protect our clients’ rights and interests. 

What is a Prenuptial Agreement?
 

By signing a Prenuptial Agreement, you are not signing away your hopes of a happy marriage. Many couples fail to draft these Agreements because they wholeheartedly believe that they will not divorce in the future. However, a Prenup is not a guarantee for a divorce.
 

Simply put, a Prenuptial Marriage Agreement is a notarized and signed contract between two people who are getting married. It determines how a couple will handle their finances and establishes the property and financial rights of each member of the couple in the event of a divorce.

To be valid, a Prenup must be:

• Written
• Signed before marriage
• Notarized
• Voluntary
• Fair for both parties
• Contain full financial disclosure
   

Many happy couples sign Prenups and never end up using them. Prenups are especially popular for people who are marrying for a second time and beyond. Contrary to popular belief, Prenuptial Agreements are not just for couples who have an uneven distribution of wealth or lots of money and assets. Anyone can sign a Prenuptial Agreement.
 

How do you make a Prenuptial Agreement?
 

To make a Prenuptial Agreement, you will need to meet with an experienced attorney who will sit down with you and walk you through the drafting process, asking questions about:

• You and your partner’s liabilities, property, and assets
• Important issues regarding your finances and the marriage
• Your goals for the future
• 
  

It is important that you and your partner are open and honest in your Prenuptial discussions. Your attorney will then draft an Agreement that will suit both your needs, which is subject to your final review.

Is a Prenup right for you?
 

Prenuptial Agreements may not work for you and your future spouse. You may have reservations about the process and what it means. In these cases, it is important to have a discussion with your partner and an experienced attorney to determine if a Prenup is the best option for your specific situation. Most lawyers simply provide Prenuptial Agreement as an "add-on" service for your next marital relationship. We are not most lawyers. We know what we are doing.

Some advantages of Prenuptial Agreement include:

• You can confront sensitive financial matters
• You protect your personal and business assets prior to marriage
• You eliminate battles over finances and assets during divorce
• You preserve family ties and inheritance
• You outline financial expectations prior to marriage

On the other hand, the disadvantages of Prenuptial Agreements include:

• They can cause friction and tension between you and your partner
• They can seem like a lack of commitment
• They can imply a lack of trust
   

Prenups can also make it seem as if you’re planning a divorce before the wedding.

Speak with an Attorney
 

Before deciding to get a Prenup, it is important that you speak with your partner about if the Agreement would be right for you both. After you reach a decision, it is imperative that you contact a lawyer with significant experience in Prenups.
 

At the Seige Law our team has a wealth of experience in competently and thorough addressing complex financial issues including business and corporate interests, pensions and retirement plans, stock portfolios and real estate. We offer knowledgeable and thorough advice to clients who wish to negotiate a Prenups or Pre-Marital Agreements. Our expertise in complex financial matters ensures that we will diligently verify both parties’ assets and debts and draft Agreements that best protect our clients’ rights and interests.

Additional Considerations to Prenuptials when Considering Post-Marital Agreements

The Postnuptial Agreement outlines how the couple’s income, assets, and liabilities are to be addressed (and divided) in the event of a separation or a divorce. You can set forth how separate and community property which has been acquired before and during the marriage will be divided. However, under California law while the Prenups is assumed to be valid (so long as you comply with the requirements discussed earlier), a California Postnuptial Agreement is assumed invalid unless there is careful adherence to all requirements as to representation, disclosure, and fairness.

 
There are many reasons a couple may decide to enter into a Postnuptial Agreement. You might not want your spouse to be part of your new business enterprise or business dealings. This may be your second marriage and you have children from a previous marriage you want to protect or support. You might want those children to receive certain assets you acquired before you entered into this marriage but just did not have the time, before the wedding, to meet with us and have created and signed a Prenup.
 

Further, a spouse might have had an affair; and, there is an understanding that the other spouse will remain married, even though there was an affair, if and only if a Postnuptial Agreement is signed. In other cases one or both of the spouses may come under drastic changes (positive or negative) in their financial situation such as a spouse suddenly cominginto a large sum of money or facing financial ruin. The reasons and possible scenarios as to why a Postnuptial Agreement might be appropriate are limitless.

There are many legal benefits, to a properly negotiated, prepared, and executed Postnuptial Agreement including but not limited to the following:
 

• Which spouse pay spousal support and for how long (the courts scrutinize withparticularity any Postnuptial Agreement that waives or limits post-divorce spousal support)
• What is the percentage interest of each spouse in the marital residence
• Which property will remain the property of each spouse if there is a divorce
• Who is responsible for which credit card debts, liabilities, loans, etc.
• Is there to be life insurance and if so on whose life and who pays the premiums
• Who owns the business or other investment property.

Negotiating a Postnuptial Agreement may seem simpler and less taxing than a Prenuptial Agreement. Although this may be true, Postnuptial Agreements do bring their own unique difficulties to the negotiation process.

Under California law, upon marriage, each spouse has a fiduciary obligation to the other. Both spouses have a duty to act for the benefit of each party involved and with the utmost good faith. Neither party is permitted to take advantage over the other. This means that Postnuptial Agreements are given special scrutiny and any agreement that seems largely unfair of blatantly one sided may not be seen as enforceable.

In order for the Postnuptial Agreement to be enforceable, the following must occur:

 
Both parties must be represented by independent legal counsel:

• The negotiations and ultimate signatures must be voluntary acts. There can be no threats, deceit, coercion, or undue influence at all
• The agreement must be fair
• There must have been full and complete disclosure of all assets, liabilities, income and debts from each party
• The agreement must be signed by both spouses with their signatures notarized
   

Postnuptial Agreements can be an incredibly important document that largely determines your financial future in the event your marriage terminates and drafting such an agreement can be an especially delicate process. In our view, only a family law specialist with substantial experience in negotiating these agreements is equipped to ensure that you and your rights are fully protected. We excise extreme attention to detail and are incredibly meticulous throughout the negotiation process to ensure that the agreement will be deemed valid.

Speak with an Attorney
 

Before deciding to get a Postnup, it is important that you speak with your partner about if the agreement would be right for you both. After you reach a decision, it is imperative that you contact a lawyer with significant experience in Prenups.
 

At the Seige Law our team has a wealth of experience in competently and thorough addressing complex financial issues including business and corporate interests, pensions and retirement plans, stock portfolios and real estate. We offer knowledgeable and thorough advice to clients who wish to negotiate a Postnuptial or Post-Marital Agreement. Our expertise in complex financial matters ensures that we will diligently verify both parties’ assets and debts and draft agreements that best protect our clients’ rights and interests.

The property rights of spouses prescribed by statute may be altered by a Premarital Agreement or other marital property agreement. Fam. Code § 1500. The Uniform Premarital Agreement Act, Fam. Code §§ 1600-1617, applies to any Premarital Agreement executed on or after January 1, 1986. Fam. Code § 1601. The validity and effect of Premarital Agreements made before January 1, 1986, is determined by the law applicable to the agreements before that date. (Fam. Code § 1503.) In general, prior law required a writing. 

Writing Requirement
 

A Premarital Agreement must be in writing and signed by both parties. (Fam. Code § 1611; see Hall v Hall (1990) 222 Cal.3d 578, 584-585, 271 Cal.Rptr. 773 (the act is a statute of frauds law requiring that the agreement be in writing to be enforceable).)

Exceptions to Writing Requirement

There is an exception to the writing requirement when a party seeking to enforce an oral Premarital Agreement performed his or her part of the bargain and in so doing irretrievably changed his or her position. (Ibid.) This continues the law in effect before enactment of the Uniform Premarital Agreement Act. 

Relief because of the partial or full performance of the contract was usually granted in equity, on the ground that the party who has so performed has been induced by the other party to irretrievably change his or her position and that to refuse relief according to the terms of the contract would otherwise amount to a fraud on his or her rights. For relief to be granted because of partial performance of an oral Prenup, the acts relied on must be unequivocally referable to the contract. Although done in performance of the contract, acts that admit to an explanation other than the contract (such as the performance of husbandly or wifely duties) are not generally acts of partial performance that will take the agreement out of the statute of frauds. (Id. 586.) 

When a wife relied on an oral Premarital Agreement by quitting her job and applying for early Social Security, such partial performance was sufficient detrimental reliance to allow enforcement of the contract as she irretrievably changed her position in reliance on her husband's promise that she would have a life estate in his home after they married. However, her entering into the marriage and paying $10,000 to her husband would not alone have been sufficient partial performance because these acts could reasonably be expected in any marriage. (Id. 586-587.)

Consideration and Effectiveness

A Premarital Agreement is enforceable without consideration. (Fam. Code § 1611.) A Premarital Agreement becomes effective on marriage. (Fam. Code § 1613.)

Subjects of Agreement

Per Fam. Code § 1612(a), parties to a Premarital Agreement may contract with respect to all of the following:

• The rights and obligations of each of the parties in any property owned by either or both of them, whenever and wherever acquired or located.
• The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
• The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
• The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
• The ownership rights in and disposition of the death benefit from a life insurance policy.
• The choice of law governing the construction of the agreement. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Amendment

After marriage, a Premarital Agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration. (Fam. Code § 1614.)
 

Enforceability
 

Per Fam. Code § 1615(a), a Premarital Agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

• That party did not execute the agreement voluntarily. 
• The agreement was unconscionable when it was executed.
   

Voluntariness
 

A Premarital Agreement is not enforceable if the party against whom enforcement is sought proves that the party did not execute the agreement voluntarily. (Fam. Code § 1615(a)(1).) Per Fam. Code § 1615(c), the court must find that a Premarital Agreement was not executed voluntarily unless it finds in writing or on the record all of the following:

• The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. (See Marriage of Cadwell-Faso & Faso (2011) 191 Cal.4th 945, 956-957, 119 Cal.Rptr.3d 818.)
• The party against whom enforcement is sought had not less than 7 calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
• The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement, as well as the rights and obligations he or she was giving up by signing the agreement and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished must be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party must, on or before the signing of the Premarital Agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
• The agreement and the writings were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
• Any other factors the court deems relevant.
   

Unconscionability
 

Per Fam. Code § 1615(a), a Premarital Agreement is not enforceable if the party against whom enforcement is sought proves that the agreement was unconscionable when it was executed, and before execution of the agreement, all of the following applied to that party:

• That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
• That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
• That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
   

An issue of unconscionability of a Premarital Agreement must be decided by the court as a matter of law. (Fam. Code § 1615(b).)

Parole Evidence

Parole evidence, such as an oral statement, is extraneous to a written agreement. Although parole evidence may be used to interpret a term in the agreement, the statute of frauds requires that the contract itself not be the product of parole evidence. The whole object of the statute would be frustrated if any substantive portion of the agreement could be established by parole evidence. Thus, parole evidence was not admissible to establish a Premarital Agreement when the writing only indirectly indicated a desire to be governed by the rules of the Islamic religion. (Marriage of Shaban (2001) 88 Cal.4th 398, 405-407, 105 Cal.Rptr.2d 863.)

Credits: California Judicial Benchguide

 Either spouse may enter into any transaction with the other, respecting property, that either spouse might enter if unmarried. (Fam. Code § 721(a).) Per Fam. Code § 850, married persons may by agreement or transfer, with or without consideration, do any of the following:
 

• Transmute community property to separate property of either spouse.
• Transmute separate property of either spouse to community property.
• Transmute separate property of one spouse to separate property of the other spouse.
   

Such an agreement or transaction is sometimes called a Postnuptial Agreement. A transmutation is subject to the laws governing fraudulent transfers. (Fam. Code § 851.) Furthermore, a Postnuptial Agreement that transmutes separate property to community property for estate planning purposes also transmutes the property for characterization purposes on a dissolution. Property is either transmuted, or it is not; property cannot be "conditionally" transmuted. (Marriage of Lund (2009) 174 Cal.4th 40, 52-54, 94 Cal.Rptr.3d 84.)

Writing Requirement

A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. (Fam. Code § 852(a).)
 

A writing signed by an adversely affected spouse is not an "express declaration" unless it contains language that expressly states that the characterization or ownership of property is being changed, independent of any extrinsic evidence. The statute does not require use of the term "transmutation" or any particular language. A provision that the grantor gives any interest held in the asset to the grantee is sufficient. (Estate of MacDonald (1990) 51 Cal.3d 262, 273, 272 Cal.Rptr. 153 (signing consent portion of an IRA beneficiary designation did not change the community nature of the deposits into the account; see Marriage of Barneson (1999) 69 Cal.4th 583, 590, 81 Cal.Rptr.2d 726 (an instruction to stock broker to "transfer" stock into the name of the spouse, without more, was not sufficient to be an express declaration of change of ownership); Estate of Bibb (2001) 87 Cal.4th 461, 468-469, 104 Cal.Rptr.2d 415 (deed granting separate property from a husband to the husband and wife as joint tenants was a sufficient writing to transmute the property to joint tenancy community property); Marriage of Starkman (2005) 129 Cal.4th 659, 28 Cal.Rptr.3d 639 (documents conveying a spouse's separate property assets to a family revocable trust were not sufficient to create a transmutation of the separate property into community property).)
 

Unlike a conventional statute of frauds, Fam. Code § 852(a) is not subject to the traditional exceptions to the requirement of a writing. (Marriage of Benson(2005) 36 Cal.4th 1096, 1100, 32 Cal.Rptr.3d 471.) For example, a spouse may not introduce extrinsic evidence under the doctrine of equitable estoppel to prove an oral transmutation of property. (Marriage of Campbell (1999) 74 Cal.4th 1058, 1061-1064, 88 Cal.Rptr.2d 580; see Marriage of Benson, supra, 1104-1111 (part performance of an oral agreement to transmute marital property is not an adequate substitute for an express written declaration).)
 

This specific rule governing transmutations of property requiring an express declaration prevails over the more general presumption of Evid. Code § 662 of ownership from title. (Marriage of Barneson, supra, 593; see Estate of Bibb, supra,470 (Fam. Code § 852(a) prevails over more general presumption of Veh. Code §§ 4150.5 and 5600.5 that a vehicle registered in the name of two co-owners is held in joint tenancy).) 

Note: In Marriage of Lafkas (2015) 237 Cal.4th 921, 939-940, 188 Cal.Rptr.3d 484, the husband owned a 1/3 interest in a partnership as his separate property. The partnership agreement was modified so that husband and wife held an undivided 1/3 interest as husband and wife so that the partnership could purchase real property on credit. Despite the fact that the court found this action dissolved the old partnership agreement and created a new one during the marriage, it was not enough to transmute husband's separate property interest pursuant to Fam. Code § 852 as there was no express declaration that the characterization or ownership of the property was being changed.
 

Writing Not Required for Agreement Prior to 1985
 

The requirement of an express declaration does not apply to or affect a transmutation of property made before January 1, 1985, and the law that would otherwise be applicable to that transmutation continues to apply. (Fam. Code § 852(e).) Prior to that date, a transmutation agreement could be oral. (Estate of Wieling (1951) 37 Cal.2d 106, 108, 230 P2d 808.) Thus, despite the statute of frauds, a party could orally transmute separate real property into community property. (Marriage of Schoettgen (1986) 183 Cal.3d 1, 5-9, 227 Cal.Rptr. 758.)
 

No Effect on Commingled Property

The written transmutation requirement in Fam. Code § 852(a) is inapplicable when separate property and community property are commingled or otherwise combined. (Fam. Code § 852(d); Marriage of Weaver (2005) 127 Cal.4th 858, 870-871, 26 Cal.Rptr.3d 121.)

Notice to Third Parties

A transmutation of real property is not effective as to third parties without notice thereof unless the transmutation is recorded. (Fam. Code § 852(b).)

Gifts of Personal Nature
 

Per Fam. Code § 852(c), the writing requirement does not apply to a gift between the spouses used solely or principally by the recipient spouse that is not substantial in value, taking into account the circumstances of the marriage, of:

• Clothing;
• Wearing apparel;
• Jewelry; or
• Other tangible articles of a personal nature.
   

(See Marriage of Steinberger (2001) 91 Cal.4th 1449, 1464-1466, 111 Cal.Rptr.2d 521 (fifth anniversary ring valued at over $13,000 was of substantial value); Marriage of Buie & Neighbors (2009) 179 Cal.4th 1170, 102 Cal.Rptr.3d 387 (automobile is not an article of personal nature).)

Waiver of Right to Annuity or Benefits
 

A waiver of a right to a joint and survivor annuity or survivor's benefits under the federal Retirement Equity Act of 1984 is not a transmutation of the community property rights of the person executing the waiver. (Fam. Code § 853(b).)
 

General Fiduciary Duty of Spouses

Each spouse must act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships that control the actions of persons having relationships of personal confidence as specified in Fam. Code § 721. (See Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.4th 1252, 1257, 130 Cal.Rptr.3d 327 (where non-managing spouse has prima facie evidence that community assets have disappeared while under the control of the managing spouse post-separation, the managing spouse has the burden of proof to account for the missing assets); Fam. Code § 1100(e).) 

The duty continues until such time as the assets and liabilities have been divided by the parties or by a court. (Fam. Code § 1100(e).)
 

Per Fam. Code § 1100(e); Marriage of Walker (2006) 138 Cal.4th 1408, 1420-1421, 42 Cal.Rptr.3d 325, this duty includes the obligation to do the following on the request of the other spouse:
 

• Make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable; and
• Provide equal access to all information, records, and books that pertain to the value and character of those assets and debts.
   

Fiduciary Duty With Regard to Interspousal Transactions
 

In transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. (Fam. Code § 721(b); see Marriage of Walker, supra, 1408, 1416-1419, (duty applies to transactions involving separate and community property).)

Per Fam. Code § 721(b), this confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Corp. Code §§ 16403, 16404, and 16503, including, but not limited to, the following:
 

• To provide each spouse with access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
• To render on request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
• To account to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.
   

Presumption of Undue Influence

When an interspousal transfer unfairly advantages one spouse, there is a presumption that the transaction was induced by undue influence. (Marriage of Burkle (2006) 139 Cal.4th 712, 730-734, 43 Cal.Rptr.3d 181 (presumption of undue influence in a Postmarital Agreement did not arise when both spouses enjoyed advantages).) The burden of rebutting the presumption of undue influence is on the spouse who acquired an advantage or benefit from the transaction. And that spouse must overcome the presumption by a preponderance of the evidence establishing that the disadvantaged spouse's action was freely and voluntarily made, with full knowledge of all the facts, and with a complete understanding of the effect of the transaction. (Marriage of Mathews (2005) 133 Cal.4th 624, 628-632, 35 Cal.Rptr.3d 1 (wife signed a quitclaim deed of all interest in the marital property to the husband; husband rebutted the presumption by establishing that the quitclaim deed was executed freely and voluntarily, and in good faith, and for the purpose of obtaining a more favorable mortgage interest rate); Marriage of Balcof (2006) 141 Cal.4th 1509, 1519-1522, 47 Cal.Rptr.3d 183.)

This presumption prevails over the presumption in favor of record title in Evid. Code § 662 because of the policy of protecting spouses and because the presumption of undue influence is more specific. (Marriage of Delaney (2003) 111 Cal.4th 991, 996-998, 4 Cal.Rptr.3d 378; see Marriage of Fossum (2011) 192 Cal.4th 336, 121 Cal.Rptr.3d 195 (husband did not rebut presumption).)

The presumption may not be invoked to establish a transmutation that fails to comply with Fam. Code § 852(a). Absent a transmutation by an express declaration, there is no basis for applying the presumption of undue influence. (Marriage of Benson, supra, 1096, 1111-1112.)

Effect of Will
 

A statement in a will of the character of property is not admissible as evidence of a transmutation of the property in a proceeding commenced before the death of the person who made the will. (Fam. Code § 853(a).)
 

Written Joinder or Consent to Nonprobate Transfer

A written joinder or written consent to a nonprobate transfer of community property on death that satisfies Fam. Code § 852 is a transmutation and is governed by the law applicable to transmutations and not Prob. Code §§ 5010-5032. (Fam. Code § 853(c); Prob. Code § 5022(b).)

Credits: California Judicial Benchguide