Chapter 36 - § 36.4 • DRAFTING CONSIDERATIONS FOR RIGHTS OF SPOUSES AT DEATH

• Jurisdiction: Colorado

§ 36.4 • DRAFTING CONSIDERATIONS FOR RIGHTS OF SPOUSES AT DEATH

The concepts of separate and marital property as defined in marital agreements are not relevant to the rights a surviving spouse has in the estate of his or her deceased spouse. However, marital agreements often address the waiver of rights a surviving spouse has in the estate of a deceased spouse. Colorado case law indicates that courts were willing to recognize and enforce provisions of premarital agreements relating to waiver of rights at death long before the Colorado Marital Agreement Act was passed in 1986. Remington v. Remington, 69 Colo. 206, 193 P.2d 440 (1920).

§ 36.4.1—Waiver of Rights of a Surviving Spouse — CMAA (Prior to July 1, 2014)

Under the CMAA, C.R.S. §§ 14-2-301, et seq. (effective for agreements signed on or before June 30, 2014), and former C.R.S. § 15-11-207 (effective prior to July 1, 2014), prospective spouses, and also current spouses, had the right to modify or eliminate property rights and other claims a surviving spouse had in the estate of his or her deceased spouse under the law. C.R.S. § 15-11-213 (effective July 1, 2014) is similar to former C.R.S. § 15-11-207 as it existed prior to July 1, 2014. In addition, under C.R.S. § 14-2-304(2) (effective for agreements signed on or before June 30, 2014) and former C.R.S. § 15-11-207 (effective prior to July 1, 2014), an agreement that provided a waiver of "all rights upon death" was deemed to include a waiver of the following statutory rights:

1) The right to a family allowance and exempt property allowance. These allowances are payable from the decedent's estate and are in addition to other property passing by will or intestacy. For 2020, the exempt property allowance is $35,000, and the family allowance is $2,917 per month for a year or $35,000 in a lump sum. C.R.S. §§ 15-11-403 and -405. These allowances must be claimed in the probate estate. C.R.S. § 15-11-405. The exempt property allowance and the family allowance are increased or decreased based on the cost-of-living adjustment as calculated and specified in C.R.S. § 15-10-112.

2) The right to act as personal representative of the estate of a deceased spouse. A surviving spouse has priority to act as personal representative unless the decedent has named another in his or her will.

3) The right to claim a homestead exemption. The homestead exemption currently protects $75,000 from execution and attachment by creditors through the deceased spouse. C.R.S. §§ 38-41-201 and -204.³⁸

4) Surviving spouse's or pretermitted spouse's share of intestate estate. A surviving spouse is entitled to claim a share of the decedent's intestate estate when a decedent dies without a will or the decedent's will fails to dispose of all of the decedent's probate property. Property that is not transferred by will, trust, beneficiary designation, or operation of law may be claimed by the surviving spouse. The amount of the claim depends on whether there are any other heirs, such as children

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