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Law Offices of Ronald W. Rutz
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October 26, 2003: Marriage and the Rights of Inheritance

Q: Lately, I have been reading a number of newspaper stories about older people marrying much younger people and then dying. The new "spouse" inherited a whole bunch of property, even though the "marriage" was extremely short. I thought that could not happen anymore in Colorado.

A: With second and third marriages very common, and with reports of people preying on older widows and widowers at places such as nursing homes, this "problem" seems to have skyrocketed.

Anyone with minimum capacity, and not under undue influence (whatever that means), has the right to change his or her Will and leave everything to whomever that person wishes. Children have no right to inherit from a parent, although many descendants exhibit a very healthy expectation of doing so.

A nuptial agreement can be signed by each party, which sets out the expectation of asset distribution on both sides and, more importantly, blocks any statutory rights to take part of the other's property, unless the other wishes to override the nuptial agreement in a Will. In other words, in the absence of a nuptial agreement, a spouse does have the right to inherit and cannot be excluded from sharing, unlike descendants of the deceased.

In yesteryear, the moment two people married, a wife had a right to half of the other's property (a husband had the right to 1/3), regardless of the length of marriage. This was modified over the years to 1/2 for either, with some states imposing a minimum time period.

Although these situations make for great plots in movies, books, television, and tabloids, it can also be very disconcerting for the people involved, especially children of the deceased. So a few years ago Colorado modified its laws.

Now, in very general terms, without a nuptial agreement, during the first year of marriage, the surviving spouse in essence is entitled to receive from the deceased up to $50,000, depending on the size of the deceased's estate and the kinds of beneficiaries left behind by the deceased. After the first year and up to the second year of marriage, the amount is 5% of the "augmented" estate (assets passing from various sources from the deceased to third parties). The amount increases 5% for each year of marriage until after 10 years when each spouse is entitled to 50% in the absence of a nuptial agreement. Thus after ten years of marriage, the surviving spouse has a right to take half of the property.

But there are other provisions that will allow a surviving spouse to take additional property--the Homestead exemption (if applicable and needed), exempt property provisions (up to $15,000), and a family allowance, just to name a few. In fact I was recently retained as an "expert" in a contested estate where a widow of a few weeks took everything!

These elective rights (in some states called dower and curtsey) vary greatly from state to state, so take with a grain of salt what you read in the newspapers, especially for situations arising in other states. But even in Colorado, and even with the general statutes in place, just remember where there is a will (or no will), there is often a way. Each party needs to protect himself or herself.

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