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Can my spouse inherit from my estate if we are divorcing?


There is constant overlap in the legal areas of family and estate planning law. Our firm has practice areas in both spaces and our attorneys consistently consult together to help our clients with their questions. One question we hear often is “Can my soon-to-be-ex spouse inherit from me while we in the midst of our divorce proceedings?”. The answer is “yes”, they can, and they will, inherit from you ~~ up until the moment before your dissolution decree is entered because your marriage is still a binding legal contract. Surprising to many, but this is the reality, and the law.

The reasoning behind this law is based, in large part, on public policy to provide support for a spouse whose deceased spouse left them little or nothing. To counter this possibility, our probate and inheritance laws in Colorado include a section called “Spousal Elective Share”, and it will trump even a legally executed will that disinherits a spouse. Frankly speaking, the probate court will not care if there was to be a finalized divorce proceeding. Colorado Revised Statute (Colo. Rev. Stat.) Section 15-11-202 (1) says, in part:

Elective-share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election . . . to take an elective-share amount equal to fifty percent of the value of the marital-property portion of the augmented estate (your augmented estate is all of your property you own, plus any amounts that were transferred automatically to your heirs through payable on death accounts and includes your retirement accounts, even if you have designated non-spousal beneficiaries; basically your augmented estate is pretty much . . . everything.).

Yes, fifty percent (50%) of your augmented estate (and more) can be awarded to your surviving spouse if you die during your divorce proceeding . . . even if your will specifically disinherited your spouse. Here’s what can happen:

  • Initially, there is a minimum amount that the surviving spouse is entitled to, from $178,000 to $356,000, depending on what heirs you leave (family, children of the marriage, etc.).
  • Next, the surviving spouse is entitled to a percentage of the remaining estate, called the augmented estate (see above for the definition), from 5% to 50% depending upon how long the marriage lasted.
  • Moreover, the surviving spouse is eligible to take the decedent spouse’s entire intestate estate if certain conditions exist such as the deceased spouse having no heirs.

But this spousal election is not automatic: the surviving spouse must make this election within nine (9) months of the death of their spouse, or within six (6) months after the will was admitted to probate. And the spousal election can be waived in a legal executed pre-marital agreement.

Divorce clients also ask whether they can transfer ownership of their property to their children or include these children as beneficiaries of say, bank accounts, by listing them as the beneficiary through a payable on death order. Unfortunately, the answer is ‘Not exactly”. A transferred asset could be brought back into a probate estate, or will be part of the ‘augmented estate’, if it occurred during the divorce proceedings (or even earlier), and the monies from a payable on death account will be included as well.

What we can advise our clients to do is complete their powers of attorney pre-divorce decree in order to remove their spouse from the management of financial or medical affairs should they become incapacitated during the divorce proceedings. This provides some comfort for those divorcing spouses wanting to name their children or a non-spouse to make these important decisions if they are unable to do so.

After a divorce is finalized, however, the law provides that ex-spouses will not inherit from each other and it is highly recommended that you both create new, separate estate plans.

We are happy to answer any questions you might have about this or any other family-estate planning legal matters. And don’t forget to ask us about pre-marital agreements or spousal trusts if you would like to learn more!

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