Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Make Sure Your Surviving Spouse is Provided for in Your Estate Plan

     The Colorado Probate Code affords a surviving spouse, who may be unintentionally omitted from his or her deceased spouse’s Will, an intestate share. The rationale for this provision of the Code is the presumption that the Decedent would have wanted the surviving spouse to receive his or her estate rather than beneficiaries named in a prior Will that predates the marriage.

     The exceptions to this general rule are as follows:

a. It appears from the Will or other evidence that the Will was made in contemplation of the testator’s marriage to the surviving spouse. 

b. The Will expresses an intention as to be effective notwithstanding any subsequent marriage; or 

c. The testator provided for the spouse by transfer outside the Will and the intent that the transfer be lieu of testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.

     On May 23, 2019, the Colorado Court of Appeals rendered a decision in In Estate of King, 2019COA82, (Colo. App. 2019) addressing the omitted spouse section of the Colorado Probate Code. The case is instructive on several issues. In the King case, Mark King (the “Decedent”) was previously divorced and had two children from that marriage. He had a Will and Trust naming his two children as beneficiaries, but did not mention his second spouse (the “Surviving Spouse”). However, the Surviving Spouse was named as beneficiary under the Decedent’s $4,000,000 life insurance policy.

     In July of 2016, the Decedent died unexpectedly. The Surviving Spouse filed a petition for an omitted spouse’s share asserting that she was unintentionally disinherited from the estate of her late husband and therefore entitled to an intestate share. The practical effect as her being treated as an omitted spouse is that she would receive 50% of the balance of estate, as well as the life insurance policy proceeds. The two children from the prior marriage and the Decedent’s sister, as personal representative, opposed the petition, arguing the Surviving Spouse’s omission was intentional because the Decedent provided for her outside of the Will.

     The Trial Court held an evidentiary hearing. The record of which did not reveal any testimony or written evidence as to the Decedent’s intent regarding the omission of his spouse. Based on the lack of evidence presented as to the Decedent’s intent, the Magistrate looked to other evidence including inferences drawn by the non-probate transfers to the Surviving Spouse. The Magistrate found the following:

1. That the Decedent established an estate plan in 2000. He created a pour over Will into a Revocable Trust. The Decedent also executed three codicils to his Will and amended his Trust three times.

2. In May of 2015, the Decedent and his first wife divorced. The Decedent and the Surviving Spouse began dating. By July 2015, he named her as beneficiary of his life insurance policy and designated her as “partner”. 

3. On September 16, 2015, the Decedent and Surviving Spouse were married, however, the Decedent did not amend his Will or Trust.

4. Eight months later, the Decedent amended his life insurance policy designating his second wife as “spouse”.

5. Two months later, the Decedent passed away unexpectedly. The second wife received the non-probate assets, including the life insurance proceeds

     The Colorado Court of Appeals, in interpreting the omitted spouse statute, recognized that it is designed to protect a testator’s surviving spouse from unintentional disinheritance by a premarital will. The Colorado Court of Appeals in upholding the Trial Court’s decision recognized that this was case of first impression and, therefore, looked to other decisions in Uniform Probate Code states, including Utah and Idaho. The Court found, when determining whether transfers were intended to be in lieu of testamentary provisions, courts have concluded that the important inquiry is not the form in which the transfer was made, or when the transfer occurred, but whether the transfer was so minimal and made in such a way that it appears that the testator failed to provide for the spouse.

     The Court of Appeals, given there was no extrinsic evidence as to the Decedent’s intent, held that the $4,000,000 life insurance policy proceeds to the Surviving Spouse six weeks before the marriage and later ratified after the marriage supported a permissible inference that the Decedent intended that his life insurance policy provide for the Surviving Spouse in lieu of a testamentary disposition. The Court found that the dollar value of the gift to the Surviving Spouse and the duration of the marriage were also relevant factors in determining whether or not a transfer was provided in lieu of a testamentary provision. The Court of Appeals explicitly found that the omitted spouse statute not only makes statements of the testator admissible to show intent, but also permits “other evidence” to support that the omission was intentional.

     Do not assume just because you got married, your prior Will is invalid. The take away from the King case is that persons contemplating marriage should update their estate plans and not leave it to family members to speculate as to what you want your spouse to receive at death.

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