Dissolution of Marriage and Estate Planning Issues
| Publication year | 1989 |
| Pages | 439 |
1989, March, Pg. 439. Dissolution of Marriage and Estate Planning Issues
As domestic relations attorneys are well aware, a dissolution of marriage plays havoc with a client's life. Family relationships, finances, physical and emotional health, place of residence and personal friendships can all be dramatically altered.
In the midst of these obvious and immediate concerns, it is easy to overlook the impact of a dissolution on a client's estate plan. Nonetheless, the breakdown of a marriage has as much an effect on this area of a client's life as it does in any other area. Failure to consider estate planning in the overall dissolution process can produce unexpected and deleterious results for the client and his or her family. This article discusses several estate planning issues that should be looked at carefully by attorneys representing clients involved in a dissolution of marriage.
The great majority of estate plans leave everything to the surviving spouse and then to the children at the second death. While this is an appropriate disposition in a stable family situation, it probably does not reflect the client's wishes when a divorce is in the offing. Again, as part of the fact-gathering process, a review and discussion of the client's will and other dispositive instruments should be undertaken.
If the client wishes to remove the estranged spouse as heir, several courses of action may be considered. First, a will leaving everything to the spouse can be simply revoked by being destroyed with the intent of revocation.(fn1) This has the effect of leaving the client intestate, which may or may not be advantageous to the client. Under Colorado intestacy laws, a surviving spouse, even if a dissolution is pending, is entitled to the entire estate if the decedent left no issue. With surviving issue, all of whom are also issue of the surviving spouse, Colorado law allows the spouse to take the first $25,000 of the estate and one-half of the balance, with the issue dividing the remainder equally. The spouse takes a flat one-half of the estate if there are any surviving children who are not also the children of the surviving spouse (i.e., step-children).(fn2)
Executing a new will that excludes the spouse altogether runs up against various statutory restrictions on the ability of a testator to disinherit a spouse, including the elective share of the surviving spouse,(fn3) exempt property rights(fn4) and the family allowance during the administration of the estate.(fn5) Issues raised by the spouse's right to elect against the will and the determination of the "augmented estate" are complex and beyond the scope of this article.(fn6) Nonetheless...
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