Chapter 13 - § 13.10 • DEFENSES AGAINST SPOUSE'S ELECTION — NUPTIAL CONTRACTS

• Jurisdiction: Colorado

§ 13.10 • DEFENSES AGAINST SPOUSE'S ELECTION — NUPTIAL CONTRACTS

The right to take an elective share may be lost by estoppel or by contract, usually by a prenuptial or a postnuptial agreement.²⁴ The prenuptial agreement may be by way of a marriage settlement, under which the spouse is given property and, in consideration of the gift, he or she waives certain rights he or she otherwise would have. Frequently, the consideration is the reciprocal releasing of rights in each other's estate. The postnuptial agreement can be for any valid consideration, such as mutual waiver of rights, present conveyance of property, or the considerations flowing from a separation agreement. Such agreements constitute valid estoppel to make an election if they are fair, based on adequate consideration, and there is no overreaching or duress.²⁵ Further, under C.R.S. § 15-11-207, rights may be lost by a one-party waiver as opposed to a two-party contract.

There have been a number of cases, in the context both of dissolution of marriage cases and in decedent's estates, that appear to be more liberal than the older cases in upholding marriage contracts. The following court of appeals cases depend upon their facts and circumstances and have not developed a clear and consistent rationale:

• Estate of Baggett, 509 P.2d 1287 (Colo. App. 1973) (not selected for official publication).
• Estate of Abbott, 571 P.2d 311 (Colo. App. 1977).
• Estate of Barnes, 586 P.2d 238 (Colo. App. 1978).
• Estate of Lewin, 595 P.2d 1055 (Colo. App. 1979).
• Marriage of Ingles, 596 P.2d 12 (Colo. App. 1979).
• Marriage of Stokes, 608 P.2d 824 (Colo. App. 1979).
• Lebsock v. Lebsock, 618 P.2d 683 (Colo. App. 1980).

In 1982, the Colorado Supreme Court decided major prenuptial cases in the context of both dissolution of marriage and death. In Newman v. Newman,²⁶ the court rejected unconscionability as a ground for invalidity of property division agreements so long as tests of fair disclosure and lack of fraud or overreaching are met.

In the probate area, the issue of the relationship between the operation of the dead man's statute and the burden of proof in cases to set aside prenuptial agreements was decided in Estate of Lopata.²⁷ In that case, the court upheld the constitutionality of the dead man's statute even where it effectively deprived the spouse of the ability to meet his or her burden to upset the instrument. The court also ruled that fair disclosure contemplated providing information "of a general and proximate nature" of the parties' financial worth and did not require providing a detailed financial statement. This holding was followed and applied in...