Section 5040 Of Chapter 3. Nonprobate Transfer To Former Spouse From California Probate Code >> Division 5. >> Part 1. >> Chapter 3.
5040
. (a) Except as provided in subdivision (b), a nonprobate
transfer to the transferor's former spouse, in an instrument executed
by the transferor before or during the marriage, fails if, at the
time of the transferor's death, the former spouse is not the
transferor's surviving spouse as defined in Section 78, as a result
of the dissolution or annulment of the marriage. A judgment of legal
separation that does not terminate the status of husband and wife is
not a dissolution for purposes of this section.
(b) Subdivision (a) does not cause a nonprobate transfer to fail
in any of the following cases:
(1) The nonprobate transfer is not subject to revocation by the
transferor at the time of the transferor's death.
(2) There is clear and convincing evidence that the transferor
intended to preserve the nonprobate transfer to the former spouse.
(3) A court order that the nonprobate transfer be maintained on
behalf of the former spouse is in effect at the time of the
transferor's death.
(c) Where a nonprobate transfer fails by operation of this
section, the instrument making the nonprobate transfer shall be
treated as it would if the former spouse failed to survive the
transferor.
(d) Nothing in this section affects the rights of a subsequent
purchaser or encumbrancer for value in good faith who relies on the
apparent failure of a nonprobate transfer under this section or who
lacks knowledge of the failure of a nonprobate transfer under this
section.
(e) As used in this section, "nonprobate transfer" means a
provision, other than a provision of a life insurance policy, of
either of the following types:
(1) A provision of a type described in Section 5000.
(2) A provision in an instrument that operates on death, other
than a will, conferring a power of appointment or naming a trustee.