Estate of Cantor

Opinion

FLEMING, Acting P. J.

Edward B. Cantor appeals a judgment of the probate court determining that by reason of an antenuptial agreement he had no interest in the estate of his deceased wife, Betti Moss Cantor.

Betti died testate on 22 January 1972, survived by her spouse, Edward, and by Steffani Turman, her daughter from a previous marriage. Betti’s will and codicil, executed prior to her marriage to Edward, left her entire estate of over $400,000 to Steffani without making provision for Edward.

Edward asserted his right to a share in the estate in spite of Betti’s will and the antenuptial agreement, claiming pursuant to the provisions of section 70 of the Probate Code: “If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse,

unless provision has been made for the spouse by marriage contract,

or unless the spouse is provided for in the will, or in such -way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received.” (Italics ours.) The probate court accepted Edward’s position in part, and, while admitting the will to probate for other purposes (see

Estate of Russell,

43 Cal.App.2d 319 [110 P.2d 718]), revoked the will insofar as it interfered with Edward’s statutory right to share in the estate as a surviving spouse. Edward conceded the estate contained no community property in which he might share but claimed a one-half share of Betti’s separate property pursuant to Probate Code, section 220: “The separate property of a person who dies without disposing of it by will is succeeded to and must be distributed as hereinafter provided,

subject to the limitation of any marriage or other contract,

. . .” (Italics ours.) Section 221: “If the decedent leaves a surviving spouse, and only one child or the lawful issue of a deceased child, the estate goes one-half to the surviving spouse and one-half to the child or issue. ...”

The probate court, however, found that on 3 June 1970, the day of their marriage, Edward and Betti executed a valid antenuptial agreement

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