BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


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          |SENATE RULES COMMITTEE            |                   AB 873|
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                                 THIRD READING


          Bill No:  AB 873
          Author:   Harman (R)
          Amended:  7/9/01 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  7-0, 7/3/01
          AYES:  Escutia, Ackerman, Haynes, Kuehl, O'Connell, Peace,  
            Sher

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           ASSEMBLY FLOOR  :  72-0, 5/29/01 - See last page for vote


           SUBJECT  :    Nonprobate transfers:  former spouses

           SOURCE  :     California Law Revision Commission
                      Estate Planning, Trust and Probate Law Section  
          of the State 
                        Bar


           DIGEST  :    This bill invalidates nonprobate transfers  
          (i.e., by trust, insurance policy, pay-on-death accounts,  
          joint tenancy, retirement benefit plan designations, etc.)  
          made to former spouses by a decedent before the termination  
          of the marriage, unless there is clear and convincing  
          evidence that the decedent intended for the benefits or  
          property to pass to the former spouse even after  
          termination of the marriage. 

          The bill requires the court to award costs, including  
          attorney's fees, and damages against a person who in bad  
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          faith serves a written notice of adverse interest to the  
          holder of property or instrument that is subject to a  
          nonprobate transfer provision. 

          This bill makes inapplicable Automatic Temporary  
          Restraining Orders (ATROs), normally issued with the filing  
          of a petition for dissolution of marriage or for legal  
          separation, to specified estate planning activities, and  
          would specifically restrain both parties from creating or  
          modifying a nonprobate transfer that disposes of property  
          without the consent of the other party or an order of the  
          court.  

          Lastly, the statutory form of the notice required to be  
          given with the summons issued or judgment ordered in a  
          dissolution regarding the possible effect of dissolution,  
          annulment, or legal separation on property rights, wills,  
          and other instruments would be amended to reflect the  
          changes this bill would make.

           ANALYSIS  :    In September 1998 and October 2000, the  
          California Law Revision Commission issued its  
          recommendations relating to estate planning during  
          dissolution of marriage proceedings and the effect of  
          dissolution of marriage on nonprobate transfers.

          This bill incorporates those recommendations in their  
          entirety, and is sponsored by the Estate Planning, Probate,  
          and Wills Section of the State Bar of California.

          Existing law provides that unless expressly stated in the  
          will, a dissolution or annulment of marriage automatically  
          revokes a will provision benefiting a former spouse.  Any  
          property that is prevented from passing to the former  
          spouse due to this automatic revocation provision passes as  
          if the former spouse failed to survive the testator.  
          [Probate Code Sections 6122 and 6127.]  The automatic  
          revocation also applies to any other power of appointment  
          conferred on the former spouse, or any provision nominating  
          the former spouse as executor, trustee, conservator or  
          guardian, such that the former spouse is deemed to have  
          predeceased the decedent.

          This bill would provide that a nonprobate transfer (as  







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          defined) made to or a joint tenancy created with a person  
          who does not qualify as a "surviving spouse" of the  
          transferor at the time of transferor's death fails, unless:

          1. The transfer is not subject to revocation at the time of  
             transferor's death; or

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

          3. There is in effect at the time of transferor's death a  
             court order maintaining the nonprobate transfer on  
             behalf of the former spouse. (this provision applying  
             only to nonprobate transfers other than joint tenancy).   
             [Proposed Sections 5600 and 5601.]

          This bill would provide exceptions to this new default rule  
          (See Comment 2c), including a transfer to a bona fide  
          purchaser for value and a court order to a party to  
          maintain the former spouse as a beneficiary or to preserve  
          a joint tenancy in favor of a former spouse.  [Proposed  
          Section 5600(d), 5603.]

          This bill would, in the event of a failed transfer of  
          interest or property to a former spouse, specify how or to  
          whom the interest or property would then be transferred.   
          [Proposed Section 21111.]

          The provisions of this bill relating to nonprobate  
          transfers and joint tenancies would affect all nonprobate  
          transfers made and joint tenancies created before or after  
          the effective date of this bill (January 1, 2002), except  
          that current law would apply to those transfers or joint  
          tenancies where the person making the transfer or creating  
          the joint tenancy dies before January 1, 2002, or where the  
          dissolution of marriage or other event that terminates the  
          status of the transferee or beneficiary as a "surviving  
          spouse" occurs prior to January 1, 2002. [Proposed Section  
          5604.]

          Finally, the bill would make other conforming changes. 

          Existing law requires that a summons issued in connection  







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          with a proceeding for dissolution of marriage, legal  
          separation, or annulment of marriage contain a temporary  
          restraining order whereby both parties are restrained,  
          among others, from making any transfers, hypothecating,  
          concealing or otherwise disposing of any property of the  
          parties, whether community, separate, or quasi-community,  
          except for expenses for the necessities of life or in the  
          usual course of business, without court order or written  
          consent by the other party.  The form and language of this  
          Automatic Temporary Restraining Order (ATRO) is specified  
          in statute. [Family Code Section 2040.]  The ATRO is in  
          effect unless the court orders otherwise or a final  
          judgment is entered in the proceeding.

          Existing law requires a petition for and a judgment of  
          dissolution or nullity of marriage, legal separation, or  
          summary dissolution of marriage to contain a notice,  
          specified in statute, relating to the possible effect of  
          dissolution or annulment of marriage on disposition of  
          property under a will, among others. [Family Code Section  
          2024.]

          This bill would specify that the ATRO restrains both  
          parties from creating or modifying a nonprobate transfer in  
          a manner that affects disposition of property subject to  
          the transfer, without written consent of the other party or  
          order of the court.

          This bill would provide exceptions to the ATRO for the  
          following activities:

          1. Creation, modification, or revocation of a will;

          2. Revocation of a nonprobate transfer, including a  
             revocable trust, provided notice is filed and served on  
             the other party before the change takes effect;

          3. Creation of an unfunded revocable or irrevocable trust;

          4. Execution and filing of a disclaimer (to a testamentary  
             or other interest as defined by the Probate Code).

          This bill would define "nonprobate transfer" as an  
          instrument, other than a will, that makes a transfer of  







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          property upon death of the transferor, including a  
          revocable trust, pay on death account in a financial  
          institution, a Totten Trust, transfer on death registration  
          of personal property, or other written provision or  
          instrument as described in Probate Code Section 5000.

          This bill would amend the statutory form of the notice  
          given with the petition for or judgment of dissolution,  
          annulment, or legal separation relating to property rights  
          of parties, to conform to the above provisions.

          Existing law protects the holder of property under an  
          instrument containing a provision for nonprobate transfer  
          of property or benefits, for making transfers in  
          satisfaction of the terms of the instrument regardless of  
          whether the transfer is consistent with the named  
          beneficiary's rights, except where the holder has been  
          served with a written notice of a person claiming to have  
          an adverse interest in the property or benefit.  [Probate  
          Code Section 5003.]  

          This bill would require a court, in a proceeding relating  
          to the rights of the parties, to award costs, including  
          attorney's fees, and damages, against a person who in bad  
          faith serves notice of an adverse interest to this holder  
          of property. [Proposed Section 5003(e).]

           Background  :

          In a letter to then-Governor Wilson in September, 1998, the  
          California Law Revision Commission stated:

          "A person who creates an instrument making a nonprobate  
          transfer to a spouse probably does not intend that it  
          continue to operate in favor of the spouse after  
          dissolution of their marriage.  In many cases the person  
          inadvertently fails to revoke the nonprobate transfer, with  
          the result that on the person's death, the property passes  
          to the person's former spouse, rather than to the person's  
          estate.  This result is contrary to the likely intentions  
          of most divorcing parties and is inconsistent with the law  
          governing wills and other inheritance rights.  The  
          Commission therefore recommends that dissolution of  
          marriage prevent the operation of a revocable nonprobate  







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          transfer on death to a former spouse, unless there is clear  
          and convincing evidence that the transferor intends to  
          preserve the nonprobate transfer in favor of the  
          transferor's former spouse."

          This bill contains the entire recommendation of the CLRC  
          with regard to nonprobate transfers to former spouses.

          Regarding another provision in the bill, on October 3,  
          2000, the Commission's letter to Governor Davis, urging  
          amendment of the Family Code provisions relating to  
          automatic restraining orders issued in connection with  
          petitions for dissolution of marriage, stated that "the  
          extent to which the [ATRO] affects estate planning changes  
          that only affect the disposition of property on death is  
          not clear."

          This bill contains the Commission's recommendations to  
          clarify the scope of the restraining order, consistent with  
          the principle that the ATRO should not restrain changes  
          that cannot dispose of the other spouse's property, and  
          that the ATRO should restrain changes that could dispose of  
          the other spouse's property.

          The sponsor of the bill, the Estate Planning, Probate,  
          Trust and Probate Law Section of the State Bar, contends  
          that the changes proposed by this bill are designed to  
          avoid unnecessary litigation between former spouses and  
          estates (or beneficiaries) of decedents.  Also, they state  
          that because more and more people are using trusts and  
          other nonprobate-type instruments for estate planning,  
          statutory clarity is needed as to the effect of dissolution  
          on nonprobate transfers, and the ability of divorcing  
          spouses to effect some estate planning changes that would  
          dispose only of their own interest and not the other  
          party's.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

           SUPPORT  :   (Verified  8/20/01)

          California Law Revision Commission (co-source)
          Estate Planning, Trust and Probate Law Section of the State  







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          Bar (co-source)
          California Judges Association


           ASSEMBLY FLOOR  :
          AYES:  Aanestad, Alquist, Aroner, Ashburn, Bogh, Calderon,  
            John Campbell, Canciamilla, Cardenas, Cardoza, Cedillo,  
            Chavez, Chu, Cogdill, Cohn, Correa, Cox, Daucher, Diaz,  
            Dickerson, Dutra, Firebaugh, Frommer, Goldberg, Harman,  
            Havice, Hollingsworth, Jackson, Keeley, Kehoe, Kelley,  
            Koretz, La Suer, Leach, Leonard, Leslie, Liu, Longville,  
            Lowenthal, Maddox, Maldonado, Matthews, Migden, Mountjoy,  
            Nakano, Nation, Negrete McLeod, Oropeza, Robert Pacheco,  
            Rod Pacheco, Papan, Pavley, Pescetti, Reyes, Richman,  
            Runner, Salinas, Shelley, Simitian, Steinberg,  
            Strickland, Strom-Martin, Thomson, Vargas, Washington,  
            Wayne, Wesson, Wiggins, Wright, Wyland, Wyman, Zettel


          RJG:jk  8/20/01   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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