Can You Disinherit a Spouse in Colorado?
In Colorado, a disinherited spouse (a spouse not provided for in a Will) may still have property rights to their deceased spouse’s estate, but there are some caveats. Even if a spouse was not given any property in their partner’s will, they can choose to receive an “elective share” of the estate. An elective share is a law that provides support for a spouse whose deceased spouse left them little or nothing at all. In the event someone truly wants to wholly disinherit their spouse (including the elective share), Colorado allows spouses to waive their right to take the elective share through a valid prenuptial or postnuptial agreement (called “marital agreements” in Colorado).
How to Calculate the Elective Share in Colorado
The value of the elective share is determined by (1) the value of the “augmented estate,” and (2) the length of the marriage. First, to determine a spouse’s elective share, the augmented estate must be calculated. The augmented estate includes the following:
- The decedent’s net probate estate;
- The decedent’s non-probate transfers to others;
- The decedent’s non-probate transfers to the surviving spouse; and
- The surviving spouse’s property and non-probate transfers to others.
Second, the length of the marriage must be calculated. The amount a spouse can take of their partner’s estate is determined by a statutory schedule that is based on how long they were married. Generally, after a marriage of one year, a surviving spouse’s elective share is 5%, while it gradually increases to 50% of the augmented estate for a marriage of 10 or more years.
How to Disinherit a Spouse in Colorado Through a Prenuptial or Postnuptial Agreement
Disinheriting a spouse in Colorado is a complex process and requires careful consideration. The vehicle used to legally disinherit a spouse is a “marital agreement.” These written agreements are commonly called pre or postnuptial agreements. A marital agreement allows spouses to negotiate terms for some of the rights and duties that result from a marriage relationship, including those rights and duties applicable upon the death of one spouse.
Colorado has specific laws that much be followed for a marital agreement to be enforceable. Colorado law requires that all marital agreements be in writing and signed by both parties. Currently, there are only four scenarios where a martial agreement will not be enforceable:
- A spouse’s consent to the marital agreement was involuntary or a result of duress;
- A spouse did not have access to their own personal legal representation;
- A party did not have their own legal representation and the marital agreement did not include a notice of waiver of rights or an explanation in plain language of the rights and obligations being modified or waived by the marital agreement; OR
- Before signing the marital agreement, a spouse did not receive adequate financial notice of the assets and debts of the other spouse.
Many disinherited spouse cases result in complex litigation when the surviving spouse claims the marital agreement is not enforceable under one of the four reasons stated above. In such cases, it is imperative to have a seasoned litigation attorney who understands not only Colorado probate law, but also litigation rules, procedures, and strategies.
How a Disinherited Spouse Can Make a Claim to Their Elective Share
For a surviving spouse to make a claim to their elective share, they must file a petition within nine months following the decadent’s death or within six months after the start of the probate of the Will. Typically, the court will then set a hearing and the surviving spouse must provide written notice of the hearing to persons interested in the estate and to the recipients of portions of the augmented estate. At the hearing, the court will determine the elective share, if any, and order its payment from the assets of the augmented estate.
The Consequences of Disinheriting a Spouse in Colorado
In Colorado, disinheriting a spouse can have far-reaching implications for any estate plan. Most notably, disinheriting a spouse often invites expensive and stressful litigation. State law provides a measure of protection to spouses, even in cases where the decedent has not provided for them in their will, as a surviving spouse may still be entitled to receive a share of the deceased spouse’s estate. Additionally, state law sometimes allows disinherited spouses to overturn prenuptial agreements. Those who wish to intentionally exclude spouses from their wills should understand the risks associated with doing so in Colorado before solidifying their plans.
If you find yourself in the situation where you want to disinherit your spouse, or if you have been disinherited by a spouse, it is important to understand both the requirements and consequences under Colorado law. The attorneys at Burnham Law are experienced in handling these complicated matters and can help ensure that your rights are protected.