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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Estate Law
Satisfied Customers: 41221
Experience:  JA Mentor. I run my own practice that specializes in Estate Preparation and Administration
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What is required to satisfy "spousal consent" in California

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What is required to satisfy "spousal consent" in California regarding the distribution of the estate when both husband and wife spelled out how this was to proceed in a prenuptial agreement?

Can either husband or wife be excluded in such a distribution if the designated heirs of the deceased spouse agree to oppose the inclusion of the excluded spouse in the distribution of the dead spouse?

Thank you for your question. Please permit me to assist you with your concerns.

What is required to satisfy 'spousal consent' is a written agreement signed by the spouse where the distribution is not going to be contested based on the prenuptial conditions. Anything else is not considered sufficient 'spousal consent' and could give the surviving spouse the right to contest the formal agreement and potentially seek an elective share against the estate.

As for exclusions, if any of the parties choose to contest the prenuptial conditions, then the estate remains open until the courts evaluate which conditions will be followed, be it state law automatic provisions, provisions of the will that are not otherwise in violations of state law or are not being contested, or the prenuptial conditions. Heirs themselves cannot exclude those who have a natural right to the inheritance, only contractual terms or obligations, or court orders can do so. But otherwise spouses cannot be excluded from the distribution.

Good luck.

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