Chapter 13 - § 13.12 • EFFECT OF CONTRACT TO WILL TO THIRD PARTY

• Jurisdiction: Colorado

§ 13.12 • EFFECT OF CONTRACT TO WILL TO THIRD PARTY

It was held in a pre-Code Colorado case that the right of election takes precedence over the rights of a third party in favor of whom the deceased spouse had agreed to make a will.⁴⁰ In the case in which this rule was announced, no authorities were cited and there was no discussion of alternative possibilities. It is arguable that a valid contract gives the promisee such an interest in the property of the promisor that, at death, the promisor's property interests are diminished to the extent of the promisee's rights, thus restricting the amount of the estate over which the rights of election exist (see § 13.4). This viewpoint is supported by authorities to the effect that the promisee may follow the promisor's property into the hands of gratuitous or other transferees of his or her property under certain circumstances and particularly if the transfer was made with the intent to deprive the promisee of his or her rights.⁴¹ If a testator can give away property during life and thus remove from his or her estate property otherwise subject to the spouse's election (see § 18.8), it would appear that a valid contract to make a will, supported by a valuable consideration, may well be superior to the right of the surviving spouse to elect against the will. On the other hand, it has been held that the promisee under a contract to make a will, whether or not breached, is in the position of a devisee under a will and accordingly is subject to the rights of the surviving spouse. In other jurisdictions, there is considerable difference as to the order of priority under various conditions, and...