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

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Pretermitted Heirs

Suppose you have a will and then, following the execution of the will, get married/or have a child. Did you know that Colorado has a “pretermitted heir” statute which basically provides that, under those circumstances, the new spouse or child is granted an intestate share of your estate. The intestate share is 50% + for a spouse and an equal share of the balance for a child. The shares are to be distributed outright, and the failure to redo your will may seriously distort the pattern for distribution of your estate. For example, your present will may set up trusts for children which coordinate the management and timing of trust distributions for the benefit of your other, pre-existing children.

The lesson: will provisions should be reviewed periodically and at such times that there is a significant change in the value of your assets or a change in the composition of your family. Marriage is certainly one of those events and suggest the possibility of a pre-nuptial agreement. The birth of a child is a similar event. Often our will drafting takes care of the problem by defining children to include those both in being and born in the future. This would avoid the impact of the pretermitted heir statute, but you have to check the language of your documents to be sure.

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