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March 10, 2005: Nuptial Agreements

Q: Our 89-year-old mother is planning to marry a 52-year-old (much poorer) widower who she met at one of those estate-planning seminars. She refuses to do a nuptial agreement as a sign of her love and trust (to his credit, the "groom" says he is willing to sign one if she is willing to sign one too but assures us children we have nothing to worry about). Are we over- reacting?

A: You are presenting one of the many dilemmas that attorneys face. On one hand, it is your MomÕs property and not your assets. On the other hand, your MomÕs judgment might be clouded so she might not be making "good" decisions. Sometimes it is hard to draw the line in the sand without intruding on your MomÕs right to live her own life.

Nuptial agreements are essential for second (or more) marriages, especially among seniors. A spouse has a number of estate (death) rights in the law that cannot be modified by just doing a Will.

Oral understandings as to inheritance rights are usually unenforceable. Thus, the survivor can take one position (such as that I do not want to inherit anything) but change his or her position after the death. Sometimes the surviving spouse never intended to keep oral promises, or changed positions because of pressure from his or her side of the family, or reacted to the actions of the deceasedÕs family, or just felt entitled to inherit because of the length of the second marriage (just to name a few).

I have also encountered situations where a fiduciary (such as an agent or the Personal Representative of the second spouse) felt a legal duty to enforce these rights. Thus, even though the couple had verbally agreed otherwise, fiduciaries felt it necessary to exert one or more rights, or face liability for losing something of value.

So what do you as children have to be concerned about from an inheritance prospective if no nuptial agreement is in place?

First, there is the right to take an intestate (if no Will is present) share of the deceasedÕs property. (Even if the deceased had a Will but it was signed before the marriage, under certain circumstances, the surviving spouse would be entitled to an intestate share.) There are various scenarios set out in the statute as to amounts. So if you are curious look at 15-11-102 and 15-11-301 Colorado Revised Statutes (CRS) for amounts and percentages.

Next is the right to an elective share. This is the right most people think of because it permits the surviving spouse to take approximately five percent of the "augmented" estate after the first year of marriage, increasing each year thereafter to half of the "augmented" estate after ten years of marriage. If you are curious about the increasing share each year, look at 15-11-201 CRS.

Colorado also permits the surviving spouse to claim up to $26,000 as exempt property (see 15-11-403 CRS).

Additionally, a family allowance claim can be filed against the estate for an amount of up to $24,000 with offsets (see 15-11-404 CRS).

If the new spouse was omitted from the Will, usually a Will executed prior to marriage, 15-11-301 CRS would give rise to a claim (see above). There are a number of other claims, such as the homestead exemption, that are available but the bottom line is that $26,000 here, $24,000 there, half of the estate assets here, other amounts there, etc. (To paraphrase the late senator and orator Everett M. Dirksen, Éafter awhile it adds up to real money diverted to the second spouse.) The financial results without a nuptial agreement could be financially devastating to the inheritance prospects of the children of the first marriage, even if their mother or father had left them all of the assets in the Will. But remember the stepmother or stepfather is merely doing what the law allows.

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