Filed 5/17/13 In re Tom E. Dixson Trust CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re TOM E. DIXSON TRUST.

JULIE ANN DUEPNER-DIXSON,

Petitioner and Appellant,

v.

HARLEY M. DIXSON, et al,

Objectors and Respondents.

 D062439

 (Super. Ct. No. 37-2010-00150222-PR-

 TR-NC)

APPEAL from orders of the Superior Court of San Diego County, Richard G. 

Cline, Judge. Affirmed.

Susan Stricklin Wilson and Barbara K. Meserve for Petitioner and Appellant.

Procopio, Cory, Hargreaves & Savitch and Mary V.J. Cataldo for Objectors and 

Respondents.

Petitioner and appellant Julie Duepner-Dixson (Julie), was married to Tom E. 

Dixson (Tom), although they had separated and he had filed a petition for dissolution of 

their marriage before he died by his own hand in 2009. Tom's property was disposed of 

by a will and trust, whose trustees, Harley M. Dixson and Rosella Jean Pelzer, are the 
2

objectors and respondents on appeal (the trustees), concerning Julie's petition to share in 

Tom's estate as an omitted spouse pursuant to Probate Code1 section 21600 et seq. Julie 

appeals orders that deny her standing to pursue such claims and that settle the trustees' 

account and report, and allow them compensation and fees.

Julie contends the evidence that was presented at bifurcated trial proceedings, 

concerning her standing as a pretermitted spouse, was insufficient to support the probate 

court's order denying her such standing and disallowing her objections to the trustees' 

administration. She claims the trial court erred by ruling (A) she did not qualify under 

section 78, subdivision (d) as a surviving spouse who retained inheritance rights; (B)

certain payments made to her by Tom were intended by him to amount to a transfer to her 

"in lieu" of any recovery through his estate plan, within the meaning of section 21611, 

subdivision (b); and (C), she effectively agreed to waive all her inheritance rights within 

the meaning of section 140 et seq., and section 21611, subdivision (c).

We have examined Julie's arguments in light of the record and determine that the 

probate court's rulings are well supported by the evidence and the law, and must be 

affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A. Marriage; Tom's Estate Planning Documents; Separation

Julie and Tom were each mature businesspersons when they married in June 2008, 

and Julie was Tom's sixth wife. In 1986, Tom executed a living trust, and he amended it 

seven times. The Trustees are Tom's brother and sister, Harley M. Dixson and Rosella 

 

1 All statutory references are to the Probate Code unless otherwise specified.
3

Jean Pelzer. Generally, Tom's will provided that his assets would be poured over into the 

Trust and allocated among his three children, one from a former marriage, and two with 

his fifth wife, Christie Lange (Lange). Tom and Julie had no children from their 

marriage.

Tom had psychiatric problems, including a bipolar condition, and he and Julie 

quarreled and separated in March 2009. Tom's business was in financial trouble and he 

wanted to get a loan against the marital residence to raise cash. Attorneys for Tom 

(Christine Sickler) and Julie (John Anderson) negotiated a property settlement, and on 

March 13, 2009, each party signed a memorandum of settlement (the memorandum). 

Julie agreed to execute an interspousal grant deed (the deed) for her interest in the 

residence, upon the receipt of a $40,000 payment from Tom and a debt forgiveness of 

$8,200 on credit cards (mainly for her attorney fees in preparing for dissolution). The 

deed was signed and the payments made, although the parties dispute whether the 

payments were in the nature of support, a divorce property settlement and/or an 

inheritance settlement.

The terms of the memorandum anticipated that an executed marital settlement 

agreement (MSA) would follow, and it would include the standard "certified specialist" 

provisions, such as inheritance waivers. The memorandum provided that Julie waived 

"any and all rights she may have to receive" spousal support, community property 

interests, or any of Tom's retirement assets. It also stated that if either party failed to sign 

the MSA, the memorandum "shall be enforceable as a Judgment under Code of Civil 
4

Procedure § 664.6." The parties exchanged preliminary declarations of disclosure of 

their assets and liabilities.

On March 23, 2009, Tom filed a petition for dissolution of marriage to Julie. 

Negotiations continued on finalizing the MSA terms and counsel exchanged drafts and 

communications. As of July 2009, they were still debating the tax status of the $40,000 

payment from Tom, but the attorneys believed that the deal was done. After the 

separation, Tom told his brother (one of the trustees) that "it's all over." He told Lange 

that Julie and he were incompatible.

Back in December 2004, when Tom was divorced from Lange, he executed the 

pour-over will disinheriting her and amended the trust to exclude her from benefiting 

from it. On April 10, 2009, Tom wrote on a copy of that will, "getting divorced from 

Julie," and wrote in the name of Julie to replace Lange's name as the spouse to be 

excluded from inheriting, and he initialed it and had it witnessed. At trial, the probate 

court determined it was not an enforceable codicil to the will.

At some other point, Tom got a copy of the trust from his estate planning attorney, 

and he wrote on the trust copy to identify Julie (not Lange) as his wife and to nominate 

her as a successor trustee. Julie did not seek to replace the trustees, since Tom's attorneys 

told her that copy of the trust was not complete.

The original 2004 will and trust documents were unavailable at the time of trial 

and it appeared that they had been lost in a burglary of Tom's safe. The trustees found 

copies of estate planning documents after Tom's death. Copies of the will and trust were 

produced at trial. 
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On August 16, 2009, Tom killed himself. Julie helped get the death certificates 

and told Tom's brother that she did not want anything more than she had received, except 

for a few of Tom's personal possessions. The petition for dissolution was still pending, 

and the MSA was never finalized. 

B. Litigation

The trustees requested that Julie sign a waiver of rights regarding the trust, and in 

response, she retained counsel. In October 2010, Julie filed a petition for an order 

declaring she should share in Tom's estate as an omitted spouse pursuant to section 21600 

et seq. (§§ 17200, subds. (b)(4), (7); 850, subd. (a)(3).) The trustees answered, alleging 

that Tom had clearly shown his intent to provide for Julie outside the Trust, and she had 

effectively waived any inheritance rights. Julie brought a motion for summary judgment, 

which the trustees opposed, and they provided a declaration from Tom's family law 

attorney, Ms. Sickler. The motion was denied.

The probate court bifurcated trial, to determine first whether Julie had standing to 

object to the trustees' accounting as an omitted spouse. The court heard the testimony of 

numerous witnesses and admitted into evidence numerous documents on those issues 

(described as necessary in the discussion portion of this opinion). 

In the court's statement of decision, the court set forth extensive background 

information and ruled, in relevant part, on the contentions of the parties as follows. The 

$40,000 and $7,500-plus payments made by Tom to Julie amounted to an in lieu transfer 

to her in place of any inheritance rights, within the meaning of section 21611, subdivision 

(b). The court relied, inter alia, on testimony about statements Tom had made to his 
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family law attorney, Ms. Sickler, his brother (trustee Dixson), and his ex-wife Lange. 

Tom apparently believed and intended that those two payments, made in anticipation of 

dissolution, would finally resolve all property rights between the parties, such as 

inheritance rights. 

The court determined that the memorandum of settlement was a binding written 

agreement between Tom and Julie, entered into in anticipation of dissolution of the 

marriage and completely settling their property disputes and relationships. The court 

ruled that Julie had waived her right to inherit from Tom. Even though the MSA was 

never completed, the evidence showed that the parties intended the memorandum to 

amount to a binding, full and complete settlement of their property issues, made in 

anticipation of dissolution, and operating to waive Julie's right to inherit as a surviving 

spouse. 

Moreover, the probate court found that Tom had provided a preliminary 

declaration of disclosure of assets and liabilities, and that Julie was knowledgeable about 

his financial status from the outset of the marriage. The court thus ruled that she had 

waived any further requirement of disclosure of his assets and liabilities, she remained 

bound by the memorandum, and the finalization of the MSA was not essential to the 

agreement.

In response to Julie's argument at trial that Tom had violated his fiduciary duties to 

her under Family Code section 721, subdivision (b), the court found that Probate Code 

sections 143 and 144 separately provided that such a Family Code provision was not 

applicable, when the alternative Probate Code criteria for enforceability of a waiver of 
7

inheritance rights were satisfied. The court next ruled that the Probate Code requirements 

of sections 143 and 144 had been satisfied, and Julie's waiver was enforceable. Thus, 

both subdivisions (b) and (c) of section 21611 had been proven to apply, and they 

provided exceptions to any inheritance rights of a surviving spouse. The trial court 

denied Julie's petition. The trustees filed an amended accounting and request for 

compensation and attorney fees, which the trial court approved.

Julie timely filed a notice of appeal of the order denying her standing to object, 

and also filed a notice of appeal of the subsequent order settling the amended account.2

DISCUSSION

In the initial phase of the bifurcated proceedings, the probate court issued a 

statement of decision determining that Julie had no standing as a pretermitted spouse to 

contest the account of the trustees. This statement of decision included findings on all 

those initial, material controverted issues. On appeal, Julie challenges the resulting 

orders by contending that no sufficient evidence supports them, regarding: (A) whether 

she, as a surviving spouse, retained inheritance rights under section 78 et seq.; (B)

whether the payments to her in connection with the deed amounted to a transfer by Tom 

to her, in lieu of his estate plan, within the meaning of section 21611, subdivision (b); and 

(C) whether she had effectively waived her inheritance rights within the meaning of 

section 140 et seq., and section 21611, subdivision (c).

 

2 As part of the record in this case, Julie designated the lodged exhibits and the 

declaration of Ms. Sickler that were filed in connection with her motion for summary 

judgment. As explained in part I.C, post, she also requested judicial notice and additional 

orders about those filings, which we granted in part and denied in part.
8

We first outline applicable legal principles and then address these arguments in 

sequence.

I

APPLICABLE STANDARDS

A. Statement of Decision; Review

Julie initially argued in her opening brief for a de novo standard of review, based 

upon her views on statutory and documentary interpretations. In her reply brief, she 

seeks to have us apply a standard for mixed questions of law and fact. At trial, the parties 

disputed the intent of both Tom and Julie in entering into the various settlement 

documents and discussions. The probate court's statement of decision was issued after 

the court heard testimony and reviewed documents to resolve the issues identified in the 

trial briefs.

Because the key trust interpretation issues here were decided on such a record of 

conflicting evidence, and by means of a statement of decision, "any conflict in the 

evidence or reasonable inferences to be drawn from the facts will be resolved in support 

of the determination of the trial court decision." (In re Marriage of Hoffmeister (1987) 

191 Cal.App.3d 351, 358; Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs 

(The Rutter Group 2012) ¶ 8:62, pp. 8-28 to 8-29; § 1000 [Code Civ. Proc. rules of 

practice apply in probate proceedings].) The ultimate facts found in the court's statement 

of decision necessarily include findings on the intermediate evidentiary facts that sustain 

them. (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1125 (Muzquiz).)
9

Generally, "[w]hen the trial court has resolved a disputed factual issue, the 

appellate courts review the ruling according to the substantial evidence rule. If the trial 

court's resolution of the factual issue is supported by substantial evidence, it must be 

affirmed." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) 

The substantial evidence standard of review involves two steps. "First, one must resolve 

all explicit conflicts in the evidence in favor of the respondent and presume in favor of

the judgment all reasonable inferences. [Citation.] Second, one must determine whether 

the evidence thus marshaled is substantial. While it is commonly stated that our 'power' 

begins and ends with a determination that there is substantial evidence [citation], this 

does not mean we must blindly seize any evidence in support of the respondent in order 

to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean] anything 

at all, it clearly implies that such evidence must be of ponderable legal significance. 

Obviously the word cannot be deemed synonymous with "any" evidence. It must be 

reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination 

is whether a reasonable trier of fact could have found for the respondent based on the 

whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 

1632-1633, fns. omitted.)

"[T]he power of an appellate court begins and ends with the determination as to 

whether, on the entire record, there is substantial evidence, contradicted or 

uncontradicted, which will support the determination, and when two or more inferences 

can reasonably be deduced from the facts, a reviewing court is without power to 

substitute its deductions for those of the trial court. If such substantial evidence be found, 
10

it is of no consequence that the trial court believing other evidence, or drawing other 

reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards

(1984) 150 Cal.App.3d 870, 873-874.) We may not reweigh the evidence and are bound 

by the trial court's credibility determinations. (Ibid.; see Heller v. Pillsbury Madison & 

Sutro (1996) 50 Cal.App.4th 1367, 1384.)

B. Extrinsic Evidence; Review

To the extent the probate court was required to interpret documents containing 

ambiguous language, a de novo standard of review applies to the threshold determination 

of the ambiguity of their provisions. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165-

1166 (Winet).) The probate court correctly determined that these settlement and 

testamentary documents were ambiguous on the status of Julie as a surviving spouse with 

regard to inheritance matters, so the probate court appropriately considered the extrinsic 

evidence offered. (Ibid.)

When required to consider extrinsic evidence as a means of clarifying an 

ambiguous provision, the courts will follow accepted guidelines:

"The decision whether to admit parol evidence involves a two-step 

process. First, the court provisionally receives (without actually 

admitting) all credible evidence concerning the parties' intentions to 

determine 'ambiguity,' i.e., whether the language is 'reasonably 

susceptible' to the interpretation urged by a party. If in light of the 

extrinsic evidence the court decides the language is 'reasonably 

susceptible' to the interpretation urged, the extrinsic evidence is then 

admitted to aid in the second step--interpreting the contract. 

[Citation.]" (Winet, supra, 4 Cal.App.4th at p. 1165.)

Based on the conflicting evidence presented about the respective intentions of the 

parties, the probate court interpreted the memorandum, and determined that the meaning 
11

urged by the trustees was the most reasonable and appropriate. The court declined to rely 

on the MSA as an enforceable document, since it was not executed, but nevertheless 

considered the evidence about the negotiations and drafting efforts for the MSA. These 

constructions of the documents by the trial court will be upheld on appeal, so long as they 

are reasonable and supported by substantial evidence. (Winet, supra, 4 Cal.App.4th 

1159, 1166.) This is not a case in which no parol evidence was introduced or there was 

no conflict, such that this appellate court could or must independently construe the 

writings. (Id. at pp. 1165-1166.)

C. Status of Record on Appeal

Julie brought a request for judicial notice on appeal, and for an order confirming 

certain documents are part of this record. (Evid. Code, § 459.) The subject documents 

are the petition for dissolution filed by Tom, and an opposing declaration filed in 

connection with Julie's motion for summary judgment, giving the views of Tom's family 

law attorney, Sickler. In those summary judgment proceedings, the trial court took 

judicial notice of the petition for dissolution, and denied the motion.

On appeal, the trustees opposed Julie's motions to supplement the record, 

contending that neither of the documents she identified had been admitted as an exhibit at 

trial, although there was some general discussion at trial about the dissolution petition, 

and it was not disputed that Tom had filed one and when.

On February 15, 2013, this court ruled upon the motion, granting it insofar as 

judicial notice of the documents' filing was concerned, but denying the motion for an 

order to confirm the documents are part of the record on appeal. In any case, we adhere 
12

to the rule that judicial notice properly extends to the existence of the documents, but not 

to the truth of the allegations contained in them. (Wolf v. CDS Devco (2010) 185 

Cal.App.4th 903, 915.)

Further, Julie's second notice of appeal has challenged the final order settling the 

accounting and report of the trustees. Substantial evidence review standards apply to 

appellate examination of a probate court's decision to accept an accounting, and Julie, as 

appellant, has the burden of showing error. (Estate of Bonaccorsi (1999) 69 Cal.App.4th 

462, 471; Estate of Massaglia (1974) 38 Cal.App.3d 767, 774-778.) "[I]in the absence of 

a challenge to findings it is assumed that they are supported by the evidence and that they 

support the judgment. " (Id. at p. 778.) Mainly, Julie is challenging the initial order in 

the bifurcated proceedings that determined she had no standing as a pretermitted spouse 

to contest the account of the trustees, and we next address that dispositive issue.

II

SUBSTANTIVE LAW: SECTION 21600 ET SEQ., REGARDING OMITTED SPOUSES

Section 21600 states that "[t]his part shall apply to property passing by will 

through a decedent's estate or by a trust . . . that becomes irrevocable only on the death of 

the settlor." Section 21610 provides for omitted spouses to share in a decedent's estate 

under certain circumstances, stating:

"Except as provided in Section 21611, if a decedent fails to provide 

in a testamentary instrument for the decedent's surviving spouse who 

married the decedent after the execution of all of the decedent's 

testamentary instruments, the omitted spouse shall receive a share in 

the decedent's estate, consisting of the following property in said 

estate: [¶] (a) The one-half of the community property that belongs 

to the decedent . . . [¶] (b) The one-half of the quasi-community 

property that belongs to the decedent . . . [¶] (c) A share of the 
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separate property of the decedent equal in value to that which the 

spouse would have received if the decedent had died without having 

executed a testamentary instrument . . . ." (Italics added.)

Julie argues the evidence is insufficient to support the trial court's finding that 

section 21611 applied in this case, to provide one or more exceptions to the omitted 

spouse provisions of section 21610. Under section 21611:3

"The spouse shall not receive a share of the estate under Section 

21610 if any of the following is established: [¶] . . . [¶] (b) The 

decedent provided for the spouse by transfer outside of the estate

passing by the decedent's testamentary instruments and the intention 

that the transfer be in lieu of a provision in said instruments is 

shown by statements of the decedent or from the amount of the 

transfer or by other evidence. [¶] (c) The spouse made a valid 

agreement waiving the right to share in the decedent's estate." 

(Italics added.)

III

CONTENTIONS AND ANALYSIS

A. Surviving Spouse Status

Under section 78, subdivision (d), a " 'surviving spouse' for purposes of the 

Probate Code does not include '[a] person who was a party to a valid proceeding 

concluded by an order purporting to terminate all marital property rights.' " (In re Estate 

of McDaniel (2008) 161 Cal.App.4th 458, 461 (McDaniel).) In the Law Revision 

Commission Comment to section 78, the reader is referred to sections 140 through 147, 

regarding a surviving spouse's waiver of rights at death. (Cal. Law Revision Com. com., 

 

3 Section 21611, subdivision (a) additionally provides for no spousal inheritance 

rights if "[t]he decedent's failure to provide for the spouse in the decedent's testamentary 

instruments was intentional and that intention appears from the testamentary 

instruments." This was not proven, due to lost originals of Tom's will and trust, and the 

trial court's conclusion on that portion of the dispute is not challenged here.
14

52 West's Ann. Prob. Code (2002 ed.) foll. § 78, p. 74.) The trustees do not deny that 

Julie was still married to Tom when he died, or that his dissolution petition was not 

finally adjudicated, but they contend that she cannot rely on the pure language of this 

section, due to the contractual interactions between the parties, even though there was 

never any dissolution or legal separation judgment.

In a more common fact pattern, in McDaniel, supra, 161 Cal.App.4th 458, the 

parties entered into a judgment dividing their marital property and they waived any rights 

to appeal. That judgment became final before the husband died, even though their 

marital status had not yet been terminated. Thus, the wife was prevented from inheriting 

from his estate, due to the operation of the judgment, which precluded her status as a 

surviving spouse who could inherit. The property settlement judgment reached before his 

death made her into "a party to a valid proceeding concluded by an order purporting to 

terminate all marital property rights" within the meaning of section 78, subdivision (d). 

(McDaniel, supra, at p. 462; see Estate of Lahey (1999) 76 Cal.App.4th 1056 [a legal 

separation judgment amounted to an order for termination of marital property rights, 

under section 78, subdivision (d)].)

This trial involved the presentation of extrinsic evidence and testimony from 

Tom's family law attorney Sickler, his ex-wife Lange, his brother and other witnesses, 

about the terms and scope of the contractual settlement, as it was represented in the 

memorandum. Julie and her family law attorney Anderson also presented evidence going 

toward the appropriate purpose of illuminating all the circumstances under which the 

documents, including the memorandum, were created. (See Wells Fargo Bank v. 
15

Marshall (1993) 20 Cal.App.4th 447, 453.) The memorandum provided that Julie waived 

"any and all rights she may have to receive" spousal support, community property 

interests, or any of Tom's retirement assets, and allowed for enforcement under Code of 

Civil Procedure section 664.6. The probate court determined that the memorandum was 

proven to be a binding contract between the parties, even though no MSA was completed. 

The court had to decide the scope of the settlement and the property rights covered, 

according to the evidence, and it determined that its scope was broad and Julie's 

inheritance rights were waived.

Although the court did not have the dissolution petition before it as an exhibit, it 

was not disputed that Tom had filed one. Julie seeks to support her surviving spouse 

status by citing to evidence suggesting that she hoped there would be a reconciliation and 

the marriage would not eventually be terminated, and that she had received the $40,000 

and debt forgiveness as support, not as a final payment, because she did not have a place 

to live when they separated. She also points out that she was self-supporting and 

knowledgeable about Tom's financial circumstances when they married, and thus she did 

not marry him for his money and should not be viewed as a gold digger, but nevertheless, 

she claims the assets he disclosed in April 2009 were greater than she expected. 

However, she does not deny that she received timely disclosures of his assets and 

liabilities, pursuant to the memorandum obligations, and she accepted the payments as 

negotiated, and they were made in anticipation of dissolution. That the dissolution 

petition remained pending and could have resulted in a different property allocation is not 

dispositive, because the parties did not pursue the petition, and it can be inferred that 
16

neither of them believed that it was necessary to do so, in view of the agreement they had 

reached.

Moreover, when Julie points out portions of the evidence that might support her 

view of things, that is not equivalent to demonstrating that there was no substantial 

evidence in support of the trial court's conclusions that she did not qualify as a surviving 

spouse for inheritance purposes. Instead, the extrinsic evidence showed there were 

settlement negotiations about many different kinds of property rights, culminating in the 

terms of an enforceable memorandum of agreement covering termination of all the usual 

marital property rights, and Tom understood that this would include inheritance rights, 

and did not hide his understanding from Julie. He sent her an e-mail on March 18, 2009, 

telling her that with respect to signing the quitclaim deed, she had "taken a simple bank 

formality and made it into a total divorce settlement."

As we interpret section 78, subdivision (d), it is not dispositive here that the 

memorandum was contractual in nature, rather than a court filed "valid proceeding 

concluded by an order purporting to terminate all marital property rights." (Ibid.) The 

memorandum anticipated enforceability as a judgment under Code of Civil Procedure 

section 664.6. In the current litigation, Julie was provided with an adequate opportunity 

to attempt to prove that as a matter of law, she qualified as a surviving spouse in this trust 

matter, as defined by statute. She was unable to do so, and the current orders confirm the 

parties' previous contractual arrangements and serve to establish the termination of her 

marital property rights, including inheritance. It would have been premature for the 

probate court to cut off the inquiry as a simple matter of definition under section 78, 
17

without considering the otherwise applicable provisions of section 21610 et seq., together 

with sections 140 et seq.

Under all the circumstances shown at trial, it was not enough for Julie to rely on 

section 78, subdivision (d), or to argue that neither the dissolution judgment nor MSA 

was ever finalized. Instead, the court properly proceeded to determine whether the 

statutory criteria of section 21611, subdivisions (b) or (c) were satisfied, such that the 

memorandum was intended by the parties to accomplish a final adjudication of their 

respective property rights, including a waiver of inheritance.

B. Transfer In Lieu of Estate Plan

Julie next argues there was no substantial evidence supporting a finding that under 

section 21611, subdivision (b), her circumstances fell within an exception to section 

21610's omitted spouse provisions. Specifically, the probate court found that Tom had 

provided for Julie by transfers outside the trust and that he had intended those transfers to 

be in lieu of providing for her under the trust. (§ 21611, subd. (b).) It is a different 

question whether Julie intentionally waived her inheritance rights, as we shall discuss in 

part III.C, post.

Julie claims that not all of the criteria of sections 140 through 147 were met here, 

regarding the regulation of contractual arrangements about rights at death, which must be 

in writing. (§ 142.) The purposes of these enactments are to provide standards of 

enforceability of property settlements (usually prenuptial) that are intended to act as a 

waiver of inheritance rights. (Estate of Gibson (1990) 219 Cal.App.3d 1486, 1492.) The 

Legislature sought in these sections to ensure that the circumstances of such a waiver of 
18

rights would be subject to evaluation by a court to determine enforceability. (Id. at 

p. 1493.)

Under section 145, these standards regulating contractual dispositions of rights at 

death also apply to a "written agreement" or a "property settlement" that was " 'entered 

into after or in anticipation of separation or dissolution or annulment of marriage.' " 

(Estate of Gibson, supra, 219 Cal.App.3d 1486, 1492.) "Probate Code section 145 thus 

appears to be directed at two types of situations: (1) where the parties do not intend an 

agreement to be merged into a dissolution judgment; and (2) where one party dies after 

both have executed a marital settlement agreement but before the court has heard the 

matter for the purpose of rendering a judgment incorporating the agreement." (Gibson, 

supra, at p. 1492.) This section provides that a waiver of "all rights" or equivalent 

language in the property or estate of a spouse is deemed to include, absent contrary 

language, a waiver of rights listed in section 141, subdivision (a), which includes 

inheritance rights.

An enforceable waiver of inheritance rights must comply with the requirements of 

sections 143 or 144 (setting the criteria for enforceability of a waiver, e.g., adequate 

disclosure being made of assets if disclosure was not waived, representation by counsel, 

or possession of independent knowledge about such assets). (§§ 142, subd. (b); 143, 

subd. (a)(1).) No such issues are argued on appeal about whether at the time of signing, 

the decedent had violated any fiduciary duty to the spouse. (§ 144, subd. (a)(2); In re 

Estate of Will (2009) 170 Cal.App.4th 902, 908; Fam. Code, § 721.)
19

Here, the memorandum of settlement is written, was signed by Julie, and it shows 

compliance with the requirements of section 143 and 144 regarding his disclosures and 

her knowledge of assets. The lack of a subsequently signed MSA does not make any 

difference, because the extrinsic evidence about the circumstances under which this 

memorandum was signed by both spouses, while represented by counsel, shows that it 

was done in anticipation of dissolution, mentions "any and all rights she may have to 

receive" different kinds of known property rights, expressly including spousal support, 

community property, or retirement assets. Under all the relevant circumstances, this is a 

complete enough list to satisfy the requirements of sections 143 through 145, and we can 

find no requirement that inheritance rights must be more specifically mentioned in any 

other type of writing, in order for an enforceable waiver to occur.

Further, Julie cannot claim any entitlement to a different type of writing, in 

addition to the memorandum, on the basis that she and Tom did not exchange their 

financial information until after the memorandum was signed, rather than before it. She 

waived any right to demand an additional writing following up on such disclosures, by 

agreeing that the disclosure could take place within 30 days of signing of the 

memorandum. She also admitted that she knew and understood Tom's financial 

condition during the marriage, and that after separation, she received disclosures as 

agreed.

The court's findings of Tom's in lieu transfer are well supported by the testimony 

regarding the purpose of the transfers and the context in which they were made. First, 

Tom told Julie he had made the transfers outside the Trust because she made it clear to 
20

him that she wanted to accomplish a complete property settlement. That these transfers 

were to be in lieu of providing for her under the trust is also shown by the testimony from 

Tom's attorney, Sickler, that she and Julie's attorney, Anderson, agreed that the 

boilerplate provisions from "certified specialist" documents, about waiver of inheritance 

rights, would be included in the MSA, and neither Tom nor Julie expressed any 

opposition to that. In the opinion of Attorney Sickler, the $40,000-plus payment to Julie 

was more than reasonable for a nine-month marriage, as an equalizing payment. 

According to Tom's ex-wife Lange, he told her that his divorce from Julie was 

final and that once he paid Julie the money, he assumed the dissolution matters were 

concluded. Tom's intention to exclude Julie from his estate plan was also shown in the 

handwritten additions he made to his copy of the will. The probate court had a 

reasonable basis in the evidence to conclude that the payments were made and accepted 

in lieu of provisions for Julie under the trust. (§ 21611, subd. (b).) Substantial evidence 

was provided to support a reasonable inference that Tom had the intention his transfers to 

Julie in connection with the dissolution, outside the trust, would prevent Julie from 

sharing in the Trust's assets. (Ibid.)

C. Waiver

Under section 21611, subdivision (c), a spouse shall not receive a share of the 

decedent spouse's estate under section 21610, if she has made a valid agreement waiving 

that right. This section is read together with the requirements of sections 143 through 

145, controlling the enforceability of a contractual waiver of inheritance rights (such as 
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the making of adequate disclosures, representation by counsel, or independent knowledge 

of the financial standing of the decedent).

To the extent that the probate court determined that the memorandum included 

inheritance rights, even though it did not expressly list them, the court's conclusions were 

legitimately based on express and implied findings that the memorandum language was 

ambiguous, that extrinsic evidence was essential to resolve those issues, and that such 

evidence supported a finding that the memorandum was intended to be a final settlement 

of the parties' respective property rights, in anticipation of dissolution, and it would 

terminate all of their responsibilities to each other. (§ 145; Estate of Gibson, supra, 219 

Cal.App.3d at p. 1492; McDaniel, supra, 161 Cal.App.4th at p. 462; see Muzquiz, supra, 

79 Cal.App.4th 1106, 1125.) The attorneys for the parties who were drafting the 

documents testified they had reached that understanding, and nothing they heard from 

their clients contradicted it, so they thought that the deal was complete. Julie cannot now 

contend that any additional writings were required, pursuant to section 142, once Tom 

had changed his position by paying the money to her and forgiving the credit card debt, 

under the demonstrated understanding that these were equalizing payments.

Without reweighing the evidence, and accepting the substantial evidence in the 

record, "contradicted or uncontradicted, which will support the determination, and when 

two or more inferences can reasonably be deduced from the facts," this reviewing court is 

entitled to accept the trial court's resolution of the disputed factual and legal issues. 

(Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) Julie has not shown how or 

why the trial court's conclusions that she waived her inheritance rights in return for other, 
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in lieu compensation are lacking in any substantial evidence support. (Winograd v. 

American Broadcasting Co., supra, 68 Cal.App.4th at p. 632.)

DISPOSITION

The orders are affirmed. Costs on appeal are awarded to Respondents.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.