Marital Agreements

Marital Agreements

Pre or post marital agreements define the rights of each spouse in the event of divorce or death. Any couple with a marital agreement should have a will. Here is why.

There are two important provisions of marital agreements. The first provision is a waiver of all rights upon death. The second provision is a clause that requires a writing to amend or revoke the marital agreement.

Marital Agreements Provision 1: A Waiver of All rights Upon Death

When a spouse waives all rights upon death, the spouse is agreeing to waive many property rights. In Colorado, those rights is the right to an exempt property and family allowance of roughly $30,000.00 to $60,000.00. The spouse is also waiving the right to inherit under the laws of intestate succession. Intestate succession laws identify who gets property if a person does not have a will or the will fails to dispose of all the person’s property. By waiving the right to receive the deceased spouse’s property by intestate succession combined with no will, the surviving spouse has no right to receive any of the deceased spouse’s property.

This may not seem unfair at first glance. However, what if the couple has been married 20 years? 30 years? What about 40 years? What if the marriage was short but the deceased spouse left substantial medical bills that the surviving spouse is obligated to pay under the family purpose doctrine?

Marital Agreements Provision 2: A Clause that Requires a Writing to Amend or Revoke the Marital Agreement

But the marital agreement was revoked and ripped into pieces (in a fit of passion of course!) on your 15-year anniversary you say? Enter into play the second important clause – the one that prohibits revoking the marital agreement unless the revocation is done in writing. Marital agreements tend to, shall we say, disappear, as death draws near. For that reason, many marital agreements prohibit revoking the agreement by verbal acts or just ripping it up. There must be a writing to revoke the agreement. If a child from a previous relationship has a copy of the marital agreement, which could be a problem for the surviving spouse.

Strike one is the waiver of all rights up death. Strike two is the requirement that any revocation be in writing. Strike three is the disgruntled child who never liked the new spouse in the first place, perhaps destroyed the will and has a copy of the marital agreement in his/her safety deposit box.

Any Couple with a Marital Agreement Should Have a Will

The solution is simple. Along with a marital agreement, there should always be a will. Even with a will, marital agreements should be revisited every few years with special attention paid to the waiver of all rights upon death. The couple should have their estate plan reviewed more frequently with an eye toward the changing financial and medical situation. Second marriages tend to create complicated issues for the couple and their respective children. Along with the marital agreement, a comprehensive estate plan should always be in place.