Marriage – Postnuptial Agreements – Arizona
Title 14, Chapter 2, Article 2, 14-2207. Rights of surviving spouse; waiver; requirements; effect
A. A surviving spouse may waive the person’s homestead allowance, exempt property and family allowance rights in whole or in part either before or after marriage by a written contract, agreement or waiver that is signed by the surviving spouse.
B. A surviving spouse’s waiver is not enforceable if the surviving spouse provides that either of the following is true:
1. That person did not execute the waiver voluntarily.
2. The waiver was unconscionable when it was executed and before its execution that person:
(a) Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent.
(b) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided.
(c) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
C. The issue of a waiver’s unconscionability may only be decided by the court as a matter of law.
D. Unless it provides to the contrary, a waiver that contains the words “all rights” or equivalent language, in relation to the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce, is a waiver of all rights of homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to each person from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
Title 14, Chapter 6, Article 1, 14-6101. Nonprobate transfers on death; nontestamentary nature
A. A provision for a nonprobate transfer on death in any insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement or other written instrument of a similar nature is nontestamentary.
B. A written instrument is nontestamentary if it contains a provision that:
1. Money or other benefits due to, controlled by or owned by a decedent before death shall be paid after the decedent’s death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
2. Money due or to become due under the written instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand.
3. Any property that is controlled by or owned by the decedent before death and that is the subject of the written instrument passes to a person the decedent designates either in the written instrument or in a separate writing, including a will, executed either before or at the same time as the instrument or later.
C. This section does not limit rights of creditors under other laws of this state.
This law summary is not legal advice. If you are not an attorney, you should consult an attorney about serious legal matters.
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