Chapter 13 - § 13.11 • ELECTION FILED DESPITE AGREEMENT TO CONTRARY

• Jurisdiction: Colorado

§ 13.11 • ELECTION FILED DESPITE AGREEMENT TO CONTRARY

Despite an agreement to the contrary, the surviving spouse may decide to file an election within the statutory period. If the agreement is not worded so as to waive rights in the estate of the testator, there will be no estoppel. A waiver will not be based on presumption or conjecture.³⁸ The question of the validity of the waiver will be a matter for the court to determine from all the circumstances. It may be that the surviving spouse wishes to avoid the estoppel by proof of deceit, nondisclosure, insufficient consideration, or some similar defense. An apt election must be made in order to preserve claimed rights pending determination of the dispute. Although the Code does not elaborate on the procedure, it appears that the filing of a petition for an elective share is the equivalent of a complaint. If the claim is to be resisted, the personal representative or a beneficiary should file what amounts to an answer setting up the existence of the contract. If the surviving spouse is to avoid the estoppel inferred from the contract, he or...