Gagnier v. Gagnier

In this case we hold that a spouse’s waiver of her right to take the statutory share of a spouse omitted in her husband’s will is valid when the waiver is contained in a premarital agreement.

The trial court found the waiver ineffective because the spouse was not represented by independent counsel in the preparation of the premarital agreement. We disagree, finding the waiver to be a valid part of a valid premarital agreement. We also find that the trial court erred in failing to exercise its discretion to alternatively decide the validity of the waiver under Probate Code section 144. In view of our first finding, the failure of the trial court to exercise its discretion under Probate Code section 144 was harmless error.

I

Facts

Lawrence Gagnier died on April 18, 1991. His will gives essentially all of his estate to his spouse, Doris Gagnier, if she survives him and, if not, to his four sons. However, Doris Gagnier did not survive Lawrence and the four sons claim their inheritance under the will. The estate is valued at approximately $357,000.

Lawrence Gagnier married Nancy J. Gagnier on October 13, 1990, approximately six months before his death. Two days prior to…