Chapter 37 - § 37.3 • PLANNING FOR A COUPLE'S POSSIBLE DIVORCE

• Jurisdiction: Colorado

§ 37.3 • PLANNING FOR A COUPLE'S POSSIBLE DIVORCE

§ 37.3.1—Marital Agreements

Spouses may enter into a marital agreement before or during marriage to control the disposition of their property. C.R.S. §§ 14-2-301, et seq. A marital agreement provides a valuable tool to ensure that a married couple's estate planning goals are accomplished. Parties to a marital agreement may each waive their respective rights to elect against the other spouse's estate, to the exempt property and family allowances, to the decedent's homestead exemption, and to serve as personal representative of the other spouse's estate. See C.R.S. § 14-2-302; C.R.S. § 15-11-213. Furthermore, spouses can dictate how property is to pass upon the death of a spouse and require spouses to make wills, trusts, and beneficiary designations consistent with the couple's overall estate plan. See C.R.S. § 14-2-302(4). A marital agreement is useful in this regard because it may prevent a surviving spouse from altering the estate plan the couple mutually agreed to create.

For marital agreements entered into before July 1, 2014, the requirements for a valid marital agreement are set forth in the Colorado Marital Agreement Act. C.R.S. §§ 14-2-301, et seq. (prior to its repeal and reenactment, effective July 1, 2014). The Colorado General Assembly enacted the Uniform Premarital and Marital Agreements Act for marital agreements entered into or amended on or after July 1, 2014, HB 13-1204 (effective for marital agreements entered into July 1, 2014, or after). For a more extensive discussion of marital agreements, see Chapter 36.

§ 37.3.2—Separation Agreements

Separation agreements are often used by parties to resolve issues of property division, custody, child support, and maintenance. They are generally made an order of the court by incorporation into the decree of dissolution of marriage. Spouses may consider including provisions that require each spouse to provide for children by will or otherwise during the children's minority. See C.R.S. § 15-11-514 concerning contracts to make wills. There is no provision under the Colorado Probate Code that requires a parent to provide for his or her children upon the parent's death or that grants a child a right to elect against the estate unless the child was born or adopted after the parent signed a will. See C.R.S. § 15-11-302 concerning children born or adopted after the parent made a will. Thus, unless otherwise provided in a marital agreement, separation...