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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 40106
Experience:  Texas lawyer for 30 years in Estate law
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1. My husband of 21 yrs passed away. We had a post nuptial

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1. My husband of 21 yrs passed away. We had a post nuptial agreement in which I had a lawyer and my husband had a lawyer. In the post nuptial it was ordered and understood for my husband to draw up a will just in case he passed away and in this nuptial he agreed that he would execute a Will to protect me etc. Finding out after he passed away that he Did Not execute a Will to protect me as he had stated in our Post Nuptial agreement.. Both my husband and I still live in the same house, as well as the exwife that was back in 1992.
2. prior to our legal marriage, my husband was married. Their divorce degree stated that his ex wife is to be awarded $36,000.00 for her interest in their home this was dated in 1992 (before our marriage); but nothing was mentioned in regard to any Will that had been written.
3. His exwife produced a Willl (executed in 1984), stating by my deceased husband that she has total rights of the home that they had purchased and that she can dispose of the house in which ever way she wants. Both my husband and his exwife are on the Title of the house. I am still residing in this house.
4. What right or rights do I have to this house? My residence is in the state of California.
Will you be able to help me in this complex area, and what rights do I have concerning my home?
My email address is: ***@******.***
Thank You for helping me with this.
Sincerely~
Rosemarie
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. Ray here to help you today.

You may have to sue the estate here asserting a claim based on the post nuptial agreement.There was a breach of contract here, he didn't do what he agreed to do.You would be a creditor of the estate seeking to be paid for what your share would be based on the agreement that was breached.Honestly the ex here probably gets the house but will have to pay you for your share or sell the house to do so.

You will need your own lawyer to bring suit against the estate and executor for breach of contract( the post nuptial agreement) and seek to enforce the terms of it.The executor of the estate has the power to resolve such claims on behalf of the estate and pay them with court approval.

Lawyer referral here

http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

I am so sorry for your loss here and having to go through this with his ex.I wish you the best here.

Expert:  RayAnswers replied 1 year ago.

These are treated as enforceable contracts here, breach of contract suit against estate under California Family Code.

1612. (a) Parties to a premarital agreement may contract withrespect to all of the following: (1) The rights and obligations of each of the parties in any ofthe property of either or both of them whenever and wherever acquiredor located. (2) The right to buy, sell, use, transfer, exchange, abandon,lease, consume, expend, assign, create a security interest in,mortgage, encumber, dispose of, or otherwise manage and controlproperty. (3) The disposition of property upon separation, maritaldissolution, death, or the occurrence or nonoccurrence of any otherevent. (4) The making of a will, trust, or other arrangement to carry outthe provisions of the agreement. (5) The ownership rights in and disposition of the death benefitfrom a life insurance policy. (6) The choice of law governing the construction of the agreement. (7) Any other matter, including their personal rights andobligations, not in violation of public policy or a statute imposinga criminal penalty. (b) The right of a child to support may not be adversely affectedby a premarital agreement. (c) Any provision in a premarital agreement regarding spousalsupport, including, but not limited to, a waiver of it, is notenforceable if the party against whom enforcement of the spousalsupport provision is sought was not represented by independentcounsel at the time the agreement containing the provision wassigned, or if the provision regarding spousal support isunconscionable at the time of enforcement. An otherwise unenforceableprovision in a premarital agreement regarding spousal support maynot become enforceable solely because the party against whomenforcement is sought was represented by independent counsel.1613. A premarital agreement becomes effective upon marriage.1614. After marriage, a premarital agreement may be amended orrevoked only by a written agreement signed by the parties. Theamended agreement or the revocation is enforceable withoutconsideration.1615. (a) A premarital agreement is not enforceable if the partyagainst whom enforcement is sought proves either of the following: (1) That party did not execute the agreement voluntarily. (2) The agreement was unconscionable when it was executed and,before execution of the agreement, all of the following applied tothat party: (A) That party was not provided a fair, reasonable, and fulldisclosure of the property or financial obligations of the otherparty. (B) That party did not voluntarily and expressly waive, inwriting, any right to disclosure of the property or financialobligations of the other party beyond the disclosure provided. (C) That party did not have, or reasonably could not have had, anadequate knowledge of the property or financial obligations of theother party. (b) An issue of unconscionability of a premarital agreement shallbe decided by the court as a matter of law. (c) For the purposes of subdivision (a), it shall be deemed that apremarital agreement was not executed voluntarily unless the courtfinds in writing or on the record all of the following: (1) The party against whom enforcement is sought was representedby independent legal counsel at the time of signing the agreement or,after being advised to seek independent legal counsel, expresslywaived, in a separate writing, representation by independent legalcounsel. (2) The party against whom enforcement is sought had not less thanseven calendar days between the time that party was first presentedwith the agreement and advised to seek independent legal counsel andthe time the agreement was signed. (3) The party against whom enforcement is sought, if unrepresentedby legal counsel, was fully informed of the terms and basic effectof the agreement as well as the rights and obligations he or she wasgiving up by signing the agreement, and was proficient in thelanguage in which the explanation of the party's rights was conductedand in which the agreement was written. The explanation of therights and obligations relinquished shall be memorialized in writingand delivered to the party prior to signing the agreement. Theunrepresented party shall, on or before the signing of the premaritalagreement, execute a document declaring that he or she received theinformation required by this paragraph and indicating who providedthat information. (4) The agreement and the writings executed pursuant to paragraphs(1) and (3) were not executed under duress, fraud, or undueinfluence, and the parties did not lack capacity to enter into theagreement. (5) Any other factors the court deems relevant.1616. If a marriage is determined to be void, an agreement thatwould otherwise have been a premarital agreement is enforceable onlyto the extent necessary to avoid an inequitable result.1617. Any statute of limitations applicable to an action assertinga claim for relief under a premarital agreement is tolled during themarriage of the parties to the agreement. However, equitable defenseslimiting the time for enforcement, including laches and estoppel,are available to either party.

Expert:  RayAnswers replied 1 year ago.

Another good reference for you to understand the process against an estate of spouse.

https://www.hklaw.com/files/Publication/142be62f-e9de-4e66-af85-16cb65a8ecc0/Presentation/PublicationAttachment/8f1aa93f-ebfd-404b-b32c-12ff157c296d/Death%20of%20a%20Litigant%20Article%20-%20Revised%20v11.pdf

If you can leave a positive rating when we are done it is always sincerely ***** *****

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