Guidotti v. Lockyer

Opinion

GILBERT, P. J.

A clause in a husband’s testamentary trust gives his wife the net income for life, but only if she does not remarry or live with a man as though married. Here we conclude that the clause is void as a restraint on marriage. (Civ. Code, § 710.)

Petitioner Darlene Guidotti appeals an order by the probate court denying a petition to reform the will of her deceased husband, Earl Guidotti, to comply with the requirements of the Internal Revenue Code concerning the marital deduction and the charitable deduction.

1

We reverse.

Facts

On March 13, 1999, Earl Guidotti died. His last will and testament dated November 19, 1993, created a testamentary trust for the benefit of his wife,

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Darlene. The trust generally provided for Darlene during her lifetime and upon her death, provided for distribution to “charitable 501 (c)(3) organizations” within the meaning of the Internal Revenue Code. The trust granted Darlene the power to appoint the charitable beneficiaries.

The trust gave Darlene the right to live in the family residence during her lifetime, rent-free. In the event she moved from the residence or was absent for more than 60 continuous days, without an intent to return, Darlene forfeited the right to live in the residence.

2

The trust also provided that Darlene would receive the net income for her lifetime. However, “[i]n the event [she] should remarry, or, live with a man as though they were husband and wife, even though not married, all income payments to her shall immediately stop . . . .” The trust also permitted an invasion of the trust principal as necessary for Darlene’s proper health, maintenance, and support. The power to invade principal, however, ceased in the event of Darlene’s remarriage or cohabitation “with a man as though they were husband and wife, even though not married.” During the probate proceedings, Darlene expressly disclaimed any interest in the trust principal by filing a written disclaimer pursuant to Probate Code section 275.