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October 30, 1998: Getting Lost Can Be Expensive; Pre-Nuptial Agreements

Q: It happened again on last night's news. During an interview, a rescued hiker repeatedly and loudly proclaimed he was not lost (although he was two days late in returning and looked like…[expletive censured and deleted to keep the question rated PG]). Am I missing something here?

A: I am merely speculating because I did not see this particular news clip but often rescued people are shocked to learn that they may have to pay the cost of their rescue (helicopter time, for example, is not cheap). The total cost could easily be in six figures. Normally the county sheriff makes the decision concerning liability.

But the good news is that protection is very easy to obtain. Anyone with a current hunting or fishing license is covered by a special state fund. People who do not hunt or fish but hike, bike, climb, ski, ride, etc. have traditionally purchased a license for just this reason. Now such a person can purchase a hiking certificate for a dollar and be protected.

But even with a license or a certificate, a person might still be liable if the "fund" is exhausted or for certain expenses that are not covered, but I have been told by the Department of Wildlife all expenses have always been paid.

Q: My fiancé and I are retired and have lost spouses. But he insulted me by asking me to sign a nuptial agreement. Should I feel this much anger?

A: Nuptial agreements are becoming more and more common in recent years. Under Colorado law, a person can disinherit everyone except a spouse. Thus, the moment that two people are married, each gains the right to inherit 10% of each other's estate regardless of what a Will might say. This guaranteed percentage increases 10% each year until after five years it stops so that each has right to inherit one half of the other's property by law.

A nuptial agreement for inheritance purposes is a waiver of this statutory right. Just doing mutual Wills omitting each other (or giving less than the law allows) usually would not be construed as a binding waiver. Each could still invoke his or her right to take the full statutory share.

To be effective a nuptial agreement needs to identify the property involved (so it is clear which assets are covered), give values (so each party knows the extent of what is being given up), and needs to be signed by two attorneys (so each has had the benefit of independent advice). If this happens, the document will stand up if challenged.

Even though both of you trust each other to keep your promises, as the years go by, it might be hard for the survivor to do so, especially if pressure is brought to bear by the survivor's friends and relatives. Also, outside parties such as an agent under a power of attorney or a personal representative may invoke or legally feel bound to exercise the statutory elective share, not to mention creditors or entities such as social services going after "this asset."

Later as the years go by the nuptial agreement can always be changed and remember a spouse can still voluntarily override the nuptial agreement and remember the other in a Will. I hope that this answer has helped. A factual response is not always satisfying when emotions have been triggered. If you are able, discuss your feelings with your fiancé.

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