Estate of Smith

The sole issue in this ease is whether appellant by entering into a property settlement agreement with decedent waived her right as his surviving wife to succeed by inheritance to his estate upon his dying intestate? We have concluded that she did and that the judgment and order determining heirship unfavorably to her claim should be affirmed.

The parties agree on the facts. Appellant Dora W. Smith (Dora) and decedent Erwin F. Smith (Erwin) were married in 1934. On July 1, 1963, Dora commenced an action for divorce. On August 26, 1963, during the pendency of such proceedings, Dora and Erwin entered into a property settlement agreement. On September 11, 1963, appellant was granted an interlocutory decree of divorce which incorporated the property settlement agreement. On April 4, 1964, and before the expiration of the one-year period required for the entry of a final judgment of divorce (Civ. Code, § 132), Erwin died intestate. On April 27, 1964, Dora was appointed administratrix of his estate and letters of administration were duly issued to her.

On October 5, 1964, respondent Otto F. Smith (Otto), decedent’s brother, filed a petition to determine interests in estate (Prob.…