In this Slate article, Brian Bix of the University of Minnesota Law School writes "Arnold Schwarzenegger's marriage to Maria Shriver seems to be over after news broke that he fathered a child out of wedlock more than a decade ago. The couple are likely to have a prenuptial agreement, according to TMZ, but they've "been together so long the effectiveness of it is problematic." If enough time passes, can a prenup expire?" The article is correct that a pre-nuptial agremeent may make provision that it expires after a certain number of years. As with any condition subsequent the Court still has the power to consider whether the clause might be invalid if it it tends to promote divorce. However, in the absence of such a provision, the passage of time does not invalidate a prenup. Nor does the passage of time make it more likely that a court will invalidate the prenup, as the article suggests. In California, there are very few cases where a prenup has been held invalid where the formalities of executing a prenup have been observed. See my article on the formalities in California. The slate articles statement "Keep in mind that very little is certain with premarital agreements, because American judges have historically looked for reasons to ignore them." is misleading, if it gives the impression that California Judges are now ready to ignore prenups where the formalities of their creation have been observed. Just look at the facts of the Barry Bond case. In Re Marriage of Bonds (2000) 24 Cal. 4th shows that in California there is a high burden to prove duress or undue influence to invaldiate a prenup. In Bonds, the Court found that there was no confidential relationship between parties contemplating marriage. They also stated that the overall fairness or unfairness of the agreement was not relevant to the test of its validity. They found that the agreement was voluntary in spite of the fact that Bond’s fiancé was unrepresented, was presented with the agreement a day before the marriage, Swedish was her main language and it was unclear whether there had been full disclosure. In December 1987, Barry Bonds, the baseball player, told his fiancé, Sun, a Swedish waitress and make-up artist who was unemployed at the time, that he wanted a prenuptial agreement prior to the planned wedding that was scheduled to take place the following year. The couple were living in Phoenix Arizona and planned to fly out to Vegas on February 5, 1988 and get married the day after. On the day of the flight, Barry and Sun met at his attorney’s office where she was presented for the first time with a prenuptial agreement to sign. According to evidence at trial she was advised to consult an independent counsel but declined because she had no assets. The agreement also referred to a schedule of the party’s property and assets but there was no such schedule attached. The Supreme Court of California upheld the trial court’s finding that the agreement was voluntary:“The trial court determined that there had been no coercion. It declared that Sun had not been subjected to any threats, that she had not been forced to sign the agreement, and that she never expressed any reluctance to sign the agreement. It found that the temporal proximity of the wedding to the signing of the agreement was not coercive, because under the particular circumstances of the case, including the small number of guests and the informality of the wedding arrangements, little embarrassment would have followed from postponement of the wedding. It found that the presentation of the agreement did not come as a surprise to Sun, noting that she was aware of Barry's desire to "protect his present property and future earnings," and that she had been aware for at least a week before the parties signed the formal premarital agreement that one was planned.”
Check out this article on CNN.com-
"Arnold Schwarzenegger's indiscretions could cost him dearly, now that he's headed for divorce with Maria Shriver.
With the couple splitting, the future of Schwarzenegger's considerable wealth is uncertain, especially since he hasn't said whether he has a prenuptial agreement.
"Did they have a prenuptial? Nobody knows that yet," said J. Michael Kelly, a celebrity divorce lawyer in Los Angeles. Both parties were quite wealthy before they were married: Schwarzenegger as a movie star and Shriver as a television reporter and also a member of the Kennedy clan.
"He married royalty, so the question is would he dare actually propose a prenup to her?" mused Kelly.
Also unclear is exactly how much this Hollywood titan is actually worth, but estimates place his wealth in the hundreds of millions of dollars." Read this article.
1. You may have to pay considerable spousal support
One of the policy goals for spousal support in California is to maintain the marital standard of living for as long as it takes the recipient to become self supporting. It ends on the death of either party or the remarriage of the supported party. Generally, for marriages of less than ten years, it lasts for half the length of the marriage.
The amount of spousal support depends on a number of factors enumerated in Family Code section 4320 such as the earning capacity of each party, the duration of the marriage, obligations and assets and the age and health of the parties. How these factors translate into a dollar amount often depends on the discretion of the Judge. In other words, by not entering into a prenuptial agreement with either a waiver or a limitation on the amount of spousal support, you are to a large degree relinquishing your future financial status to a court.
To give you some idea of how much you might have to pay, consider the following example using the Dissomaster program. The Courts use Dissomaster software to calculate permanent child support and temporary spousal support. Although they are not allowed to use Dissomaster to calculate permanent spousal support and must consider all the 4320 factors, for our purposes it is a good starting point.
Example: Husband earns $300,000 per year and Wife earns $14,400 per year. They have two children and have a custody agreement where Husband has the kids 40% of the time. He pays $6,000 a year in property taxes and $12,000 a year in mortgage interest. In 2009, Husband’s obligation to pay child and temporary spousal support would be $8,550 a month of which $6,501 would be spousal support. Many family law practitioners negotiating permanent support apply a rule of thumb that permanent support is 30% less than the temporary spousal support.
Is this fair? This is a legal as well as an ethical question. If you divorced in Texas, the maximum spousal support you would get is for 3 years and no more than the greater of $2,500 per month or 20% of gross income. What if one of the spouses is a millionaire who built up a business and marries someone who has worked in a number of minimum wage jobs. They divorce after three years because the latter had an affair. They never had children. Is it fair that the millionaire must pay support so that the former spouse can live at the former marital standard of living? Many people would regard this as a windfall.
California law allows you to waive or limit spousal support as long as the provision is not deemed unconscionable. Unfortunately, as yet there is no case law defining the word "unconscionable." If there is a significant disparity in the amount of wealth between the parties, instead of waiving spousal support, the prenuptial agreement may place limits on the amount and duration of support. The amount and duration can be based on a formula which takes account of the income of the parties and the duration of the marriage.
2. Why you may need a premarital Agreement even if you bring separate assets into the marriage.
You may own a home or own a business prior to marriage. Generally, assets acquired prior to the date of marriage are separate property. So why would you need a premarital agreement? The problem is that there are many ways, in the absence of a premarital agreement, the community can acquire an interest in separate property assets by virtue of community efforts and investments during the marriage.
Consider real property brought into the marriage. During the marriage title remains in one spouse’s name but the outstanding mortgage is paid with community earnings. Those could be earnings of either spouse. The spouse who is not on title may acquire a community property interest by virtue of the mortgage payments made with community earnings. This is commonly referred to as a “Moore-Marsden” interest based on the two cases that establish the formula for calculating the community interest. When a couple have been married a long time and substantial amounts of community earnings have paid off an existing mortgage, making improvements or the parties have re-financed, this “Moore-Marsden” interest can be substantial.
A similar situation arises where one spouse owns a business prior to marriage. In the absence of a premarital agreement keeping the business as separate and all personal efforts and contributions as separate, the community would acquire an interest in the business if the owner spouse continues to work in the business. In a divorce you would probably need a forensic accountant to calculate the separate and community portion of the business.
3. The problem of goodwill.
Accountants recognize the existence of goodwill created in businesses and professional practices. Goodwill is an intangible asset which measures the expectation of continued patronage. Different states measure goodwill differently but in California the case law has accepted a number of valuation methodologies that value goodwill greater than the fair market value measured by what a willing buyer would be willing to pay for the business as a going concern. This can be a big problem where the business is the most significant marital asset and the owner is forced to buy out the community share of the business which consists mainly of goodwill.
read more on Prenuptial Agreements on our website www.californiaprenuptial.com
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Miss Radmacher, said to be worth £100 million, won a ruling from the Court of Appeal that the pre-nuptial contract should be taken into account by the courts when they divide assets after a marriage fails.
Her former husband, Nicolas Granatino, had agreed not to make any claims on her fortune if they split up, but was awarded £5.85 million for his own use by a High Court judge last year.
This has been cut to about £1 million as a lump sum in lieu of maintenance with a fund of £2.5 million for a house which will be returned to Miss Radmacher when the youngest of their two daughters, who is six, reaches the age of 22.
His debts of about £700,000 are to be paid off by the heiress, who had always agreed to this settlement.
The couple's marriage was said to have broken down after Mr Granatino, 37, gave up a lucrative job in the emerging markets sector in 2003 to become a £30,000-a-year biotechnology researcher at OxfordUniversity. They divorced in 2006.
Mr Granatino is expected to seek permission to take the case to the House of Lords for the issue of pre-nuptials to be reviewed by the highest court in the land.
Representing Miss Radmacher, Richard Todd QC told a panel of three Court of Appeal judges headed by Lord Justice Thorpe at a hearing in April that the freedom to agree a contract was "at the heart of all modern commercial and legal systems".
He said Miss Radmacher had never said that her former husband would leave the marriage with nothing.
Miss Radmacher, 39, said in a statement: "Firstly, I will never regard my marriage as a mistake. I have no regrets as our marriage has given me two wonderful daughters.
"I am delighted that the court accepts that the agreement Nicolas and I entered into as intelligent adults before our marriage should be honoured.
"Ultimately, this case has been about what I regard as a broken promise.
"When we met and married, Nicolas and I were broadly on an equal footing financially. He too is an heir to a multimillion-pound fortune and, when we met, was an investment banker earning up to £330,000 a year.
"The agreement was at my father's insistence as he wanted to protect my inheritance - this is perfectly normal in our countries of origin, France and Germany. My father taught me the value of hard work and family values.
"Like all wealthy parents, he feared gold-diggers.
"As an heir himself, Nicolas perfectly understood this. The agreement gave me reassurance that Nicolas was marrying me because he loved me as I loved him... that we were marrying for the right reasons.
"The arrangements the court has ordered will enable our daughters to live comfortably when they are with their father, and that is the way it should be. Nicolas and I made each other a promise and all I have been asking is that he be kept to it."
Her solicitor, Ayesha Vardag, commented: "For 160 years prenuptial contracts were said to be void for public policy reasons. They were put in the same category as contracts to kill your hated spouse.
"Now, in a landmark judgment, three of the most highly-respected judges in the land have ruled that pre-nups can be decisive in determining the financial division on divorce.
"As my leading counsel, Richard Todd told the court, the genius of the Matrimonial Causes Act is that it allows the law to change with the times.
"Lord Justice Thorpe praised two modern principles: first, that there should be due respect for adult autonomy. Responsible adults should be allowed to decide the financial fate of their marriage themselves without excessive interference from a nanny state; second, that the old public policy argument reflects the laws and morals of earlier generations. We have moved on.
"The Court of Appeal, in a carefully-reasoned, thoroughly modern judgment has enabled English matrimonial law to catch up with the rest of the world.
"From today grown-ups can agree in the best of times what will happen in the worst of times."
The solicitor said Miss Radmacher had succeeded in securing a ruling that the pre-nuptial contract should be decisive.
The heiress had accepted that, in any event, the father of her children should have a home for as long as the children were young enough to need to stay with him.
Miss Radmacher, a paper industry heiress, had challenged the Family Division ruling by Mrs Justice Baron that it would be "manifestly unfair" to hold Mr Granatino to the pre-nuptial contract, which was signed in Germany before the couple married in London in 1998.
Although the judge recognised that the pre-nuptial agreement would have been fully enforceable in Germany or France, she ruled that they have never been legally binding in this country.
She also said that the arrival of the couple's children had "so changed the landscape" that it should be set aside.
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ENFORCEABILITY OF PRENUPTIAL AGREEMENTS
In 1976 the California Supreme Court in the landmark decision of In Re Marriage of Dawley recognized that prenuptial agreements that contemplated divorce were not invalid per se and against public policy but should be reviewed on a case by case basis to determine if they promoted marital breakdown. In 1986Californiatook another important step in recognizing the validity of prenuptial agreements by adopting its version of the Uniform Premarital Agreement Act which was further amended in 2002. This Act is now adopted in twenty four other states. The current version ofCalifornia’s Premarital Agreement Act is contained in Family Code sections1600-1617.
In order to ensure its enforceability any attorney drafting a prenuptial agreement (also referred to an antenuptial or premarital agreement) should be familiar with the provisions ofCalifornia’s Premarital Agreement Act and the case law. For prenuptial agreements executed after January 1, 2002, the Family Code provides that an agreement will not be enforceable if either (1) the agreement was involuntary or (2) the agreement was unconscionable and there was no adequate disclosure or (3) the agreement violates public policy.
The following general conclusions can be learned from these requirements which are discussed in more detail below:
The agreement must be voluntary
Family Code 1615 places on the party seeking to avoid enforcement the burden of demonstrating that the agreement was involuntary. All prenuptial agreement executed after January 1, 2002 are deemed to be involuntary and therefore unenforceable unless the court finds that all of the following requirements are met.:
1. Independent counsel: The party had independent counsel or was advised to seek independent counsel but waived that right in a separate legal writing. This means that if you can only afford one attorney, the non-represented party must sign a separate written acknowledgment that they have been advised to retain an attorney but declined to do so. It is not enough that the acknowledgement is contained in the prenuptial agreement itself. It is often the case that the idea for a prenuptial agreement is initiated by one spouse: usually the one with the greater assets and income. That person may be tempted to provide assistance in finding and paying for the other’s attorney. It is good practice to find and pay for one’s own attorney. If you must rely on a referral from the other party or their attorney then get at least three referrals. Further, if a party cannot afford to pay an attorney, the other party should loan the money for legal fees rather than paying that attorney directly in order to avoid the appearance that the attorney is not independent.
2. Seven day waiting period: At least seven days must have elapsed between the date that the parties were “first presented” with the agreement and advised to seek independent counsel and the time the agreement was signed. This means that if you decide to consult an attorney about drafting a prenuptial agreement days before the wedding, you are too late. Even if you wait until a few weeks before the wedding, you may run foul of this provision because it is not clear whether the seven days runs from the first or last draft of the agreement. A conservative interpretation of the statute requires that once you have negotiated a final draft of the agreement, you must wait a further seven days before signing the agreement.
3. Full disclosure to an unrepresented party: If a party waives their right to independent counsel, for the agreement to still be enforceable the court must find the following: (a) they were fully informed about the terms and basic effect of the agreement and the rights they were relinquishing by signing the agreement (b) they were proficient in the language of the prenuptial agreement and in the language in which explanation of the effect of the agreement was given. Further this advice must be memorialized by the attorney in writing and given to the unrepresented party before they sign the prenuptial agreement. These requirements make it very difficult for only one party to be represented by an attorney. If you think that you are saving money by having only one attorney, you are not. That is because that attorney will have to prepare a lengthy opinion letter to the unrepresented party explaining not only the effect of the prenuptial agreement but also all the rights they will be relinquishing underCalifornialaw. Therefore, both sides should always be represented by independent counsel in preparing a prenuptial agreement.
4. Duress, Fraud and Undue Influence: The court must also find that in signing the agreement or any of the other writings referred to above, a party did not act under duress, fraud, or undue influence. Fraud is an intentional concealment of a material fact with intent to deprive the other of a legal right. Duress is where a person has been deprived of their free will by a threat to the safety of their person, family or property. Undue influence takes place where one takes a “grossly oppressive and unfair advantage of another’s necessities or distress” or takes unfair advantage of a confidential relationship. The leading case of In Re Marriage of Bonds (2000) 24Cal.4th is interesting because it suggests that there is a high burden to prove duress or undue influence. The Court found that there was no confidential relationship between parties contemplating marriage. They also stated that the overall fairness or unfairness of the agreement was not relevant to the test of its validity. They found that the agreement was voluntary in spite of the fact that Bond’s fiancé was unrepresented, was presented with the agreement a day before the marriage, Swedish was her main language and it was unclear whether there had been full disclosure. In December 1987, Barry Bonds, the baseball player, told his fiancé, Sun, a Swedish waitress and make-up artist who was unemployed at the time, that he wanted a prenuptial agreement prior to the planned wedding that was scheduled to take place the following year. The couple were living in PhoenixArizona and planned to fly out to Vegas on February 5, 1988 and get married the day after. On the day of the flight, Barry and Sun met at his attorney’s office where she was presented for the first time with a prenuptial agreement to sign. According to evidence at trial she was advised to consult an independent counsel but declined because she had no assets. The agreement also referred to a schedule of the party’s property and assets but there was no such schedule attached. The Supreme Court of California upheld the trial court’s finding that the agreement was voluntary:
“The trial court determined that there had been no coercion. It declared that Sun had not been subjected to any threats, that she had not been forced to sign the agreement, and that she never expressed any reluctance to sign the agreement. It found that the temporal proximity of the wedding to the signing of the agreement was not coercive, because under the particular circumstances of the case, including the small number of guests and the informality of the wedding arrangements, little embarrassment would have followed from postponement of the wedding. It found that the presentation of the agreement did not come as a surprise to Sun, noting that she was aware of Barry's desire to "protect his present property and future earnings," and that she had been aware for at least a week before the parties signed the formal premarital agreement that one was planned.”
If the facts had been the same but the prenuptial agreement had been executed after January 1, 2002 there may well have been a different result since there as no written waiver of the right to obtain independent counsel, no seven day waiting period and no written explanation in Swedish of the effect of the prenuptial agreement and the rights that Sun was relinquishing.
A court might find duress or undue influence if there is a history of domestic violence. The case of In Re Marriage of Balcof (2006) 141 Cal App. 4th 1509 while dealing with a postnuptial agreement signed after the marriage is illustrative. In that case the court invalidated a post nuptial agreement on the grounds of duress and undue influence where the husband signed a post nuptial agreement transferring a percentage of his business to his wife as a result of continued verbal and physical abuse from the wife, including being hit in the face front of the children and threats by his wife to undermine his relationship with his children.
In the Dawley case, the Supreme Court held that the fact that wife entered the prenuptial agreement because she was pregnant and was concerned about her financial security did not amount to under influence but only because “James, threatened with a paternity suit and likely loss of his position, was in no position to take advantage of her distress” reflecting this rough equality of bargaining power.” This appears to leave the door open that the threat not to marry a pregnant woman may be partial evidence of duress or undue inference. In other States the courts are split on the issue and one commentator has stated that where pregnancy is the only evidence of duress or undue influence, the cases tend to find agreements valid but where there are other aggravating factors in addition to the pregnancy, the agreement is more likely to be invalidated. 
The agreement was unconscionable and there was no adequate disclosure
A party may claim that a prenuptial agreement is invalid because it was both unconscionable when the agreement was executed and that there was no adequate disclosure.
The burden is on the party claiming that the agreement is invalid. Unfortunately, there are no California cases that address whether or not a prenuptial agreement is unconscionable in this context. Applying the test of contractual unconscionability, most commentators argue that there must be both procedural and substantive unconscionability. Procedural unconscionability has been defined as oppression caused by unequal bargaining power and surprise due to hidden and unexpected provisions. Substantive unconscionability involves a one sided and unreasonable agreement lacking in any justification. Factors which might have a bearing on the issue of unconsionability would be whether a party was presented with the agreement as a fait accompli at a lawyers offices just before the wedding or was given advanced warning and had an opportunity to review a draft before signing, whether any revisions were made to the agreement at the request of the party challenging enforcement, whether they were represented by counsel, whether they considered the agreement fair at the time of signing and whether the agreement’s terms were clearly set out and not hidden in small print. There are many cases upholding prenuptial agreements which seem unfair but are “well within the permissible scope of advantage to one of the parties.” 
Even if the agreement is unconscionable there must also be a finding that there was no full disclosure for the agreement to be invalidated. The person claiming that the agreement was invalid must also prove all of the following elements: a) the party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, (b) the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and (c) that party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. It is therefore good practice to provide for full disclosure of all the parties’ income, assets and liabilities within the body of the agreement and for the parties to acknowledge that they have exchanged tax returns. The parties should also state in the agreement that they have waived any disclosure beyond that provided.
Violation of public policy
Provisions in an agreement that seek to impose moral or religious conduct upon the parties during the marriage, limit child support obligations and divest the Court of the power to make custody decisions in the event of a divorce are against public policy and may make the entire agreement unenforceable. Therefore it is a good idea to have a provision that the agreement is severable. Agreements which attempt to impose a penalty upon a party as a result of that party’s “fault” during the marriage (e.g. infidelity) are generally held to be unenforceable as contrary to the public policy underlying no-fault divorces in California . In one case a provision in an agreement that contained a liquidated damages clause of $50,000.00 payable by a party who was unfaithful rendered the entire agreement unenforceable.  This case therefore makes it very unwise to contain any provisions which seek to place restrictions on the division of property or support on the basis of fault. A more difficult question is whether an agreement that makes provisions for lump sum payouts is unenforceable on the grounds that it promotes divorce. In the landmark Dawley case the Supreme Court drew a distinction between terms which encourage or promote dissolution (invalid) and terms which reorders the property rights of the parties to fit their needs (valid). Therefore, in one case a Jewish couple signed a “Kethuba” in which the husband promised in the event of divorce to give wife his separate property house and $500,000 or one half of his assets whichever was greater. The court believed that the settlement was so substantial that it "threaten[ed] to induce the destruction of a marriage that might otherwise endure" and invalidated the agreement. In another case, the court upheld the agreement where the 76 year old husband millionaire promised to pay his 46 year old fiancé $100,000 if they divorced on the grounds that this payment was calculated to compensate her from the loss of spousal support from a former marriage and was therefore a proper "reordering of property rights to fit the needs and desires of the couple" even though the marriage only lasted a year. For this reason it is good practice to ensure that any payments following divorce are in the form of support instead of lump sum property payments.
Special rules for spousal support
A waiver or a restriction of spousal support in the agreement is unenforceable if either the party was not presented by independent counsel or the agreement was unconscionable at the time of enforcement. There is no provision for a knowing waiver of the independent counsel requirement. It is impossible to know in advance whether the spousal support provision is unconscionable because it is tested at some time in the future. We know that a spousal waiver will not be enforced if it leaves an ill or disabled spousal unable to support themselves. Unfortunately, there is scant California authority for the meaning of unconscionability in the support context. A leading Oregon case which has been cited by California cases suggest that a waiver of support will be upheld unless the other spouse has no other reasonable source of adequate support. That case made it clear that adequate support means the minimum amount a person needs to support themselves and is not related to the parties’ marital standard of living. A Colorado Supreme Court upheld a spousal support waiver between a millionaire husband and wife who was earning only $1500 after the divorce. An Arizona Court of Appeals adopted what it called the “majority rule” established in these cases that spousal support waivers will be enforced unless it would render one spouse without a means of reasonable support or a public charge either because of a lack of property or unemployment.  However these cases are not binding on California courts which have not shown any reluctance to follow a “minority” rule if they feel that to be the enlightened position. It may be prudent to contain restrictions on the payment of support rather than an outright waiver in any agreement.
© 2009 Warren R. Shiell. All rights reserved. Los Angeles Divorce and Family Law Attorney. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement. This article states the state of the law as of 2009 and there may be subsequent changes in the law which render all or part of this article obsolete.
 In Re Marriage of Bonds (2000) 24Cal , 4th 1, at 37.
 Drafting Prenuptial Agreements by Gary N. Skoloff, Richard H. Singer, Jr. Ronald Brown (2008 Supplement case review)
 Little v. Auto Steigler, Inc. (2003) 29Cal.4th 1064.
 In Re Marriage of Dawley (1976) 17 Cal. 3d 342 (premarital agreement in which all property, earnings and income acquired during marriage remain the acquiring party’s separate property); Marriage of Bonds (2000) 24Cal. 4th1, (premarital agreement wherein each party waived any interests in any earnings and acquisitions of the other during marriage); Marriage of Cleveland (1976) 76 Cal. App. 3d 357 (agreement signed 15 minutes before marriage providing that all property then owned by each party acquired daring marriage would remain the acquiring party’s separate property).
 Diosdad v. Diosdado (2002) 97 CA4th 470.
 E.g Marriage of Noughrey (1985) 169 CalApp. 3d 326
 In Re Marriage of Bellio (2003) 105 Cal App. 4th 630.
 In Re Marriage of Rosendale (2004) 1119 Cal App. 4th, 1202 (spousal support waiver unenforceable where wife suffered brain damage, on life support, numerous injuries. Court also stated that Family Code section 1612 only clarified prior common law requirements.)
 Unander v. Undander (Ore.1973) 506 P.2d 719.
 Newman v. Newman (Col1982) 653 P.2d 728.
 Williams v Williams (Ariz 990) 801 P.2d 495.1
An excellant post from the California Estate Planning Blog about what rights a spouse has to the surviving spouse's community property and separate property upon death. article