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Law Offices of Ronald W. Rutz
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May 1, 1998: Nuptial Sovereignty; Joint Tenancy Qualms Laid to Rest

Q: Will nuptial agreements stand up if challenged?

A: In Colorado if specific rules are followed, a nuptial agreement becomes "bullet proof". If the rules are not followed, a nuptial agreement can become very fragile. Property to be covered must be listed in the document and the approximate value must be disclosed. Thus no one can argue that if only he or she knew how valuable certain things were, that person would not have signed. Any asset that is not listed, or is not adequately identified, will not be covered by the Agreement. The net worth of each person should also be disclosed. The nuptial agreement can cover either a divorce or death (or both) and should contain provisions dealing with assets acquired during marriage and appreciation on assets brought into marriage or inherited during marriage.

Although one attorney can draft the document, one of the persons should consult with his or her own attorney who will review the document from that person's perspective and explain what rights are being given up. Thus, neither party can argue that the attorney was representing the other, a person's rights were not explained impartially, a person was tricked into signing, etc. Thereafter each person and each attorney will sign the documents (usually four originals). Even though this all seems very complicated, if a couple wants to do things the right way and be sure that each (including his or her side of the family) is protected, then the foregoing must be followed.

Q: I moved here from California and heard that I should not put things in joint tenancy with my spouse because it would then "taint" the community property that we are bringing to Colorado.

A: I keep hearing this concern from people arriving from community property states but I want to assure you that you should not hesitate to put property in joint tenancy, if such ownership is right for you. At one time there were significant tax advantages enjoyed by our community property neighbors but that has not been the case now for about fifteen years. You do not have to "preserve" your community property status, at least for tax purposes.

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