What impact does a spouse’s elective share have on a last will?

On Behalf of | Apr 21, 2021 | Estate Planning

A last will or estate plan is a tool that lets someone control who receives their property when they die. An individual creating a last will can get as creative as they want with how they distribute their property, as long as they abide by state law and have enough resources to meet all of their obligations.

Some people use trusts to limit how much an heir can spend at one time or what they can use the inheritance to do. Others sometimes use their last will as a means of righting wrongs in their family. This could include disinheriting a particularly unkind family member or giving more to someone who has endured hardship or difficulty establishing themselves.

Most of the time, family members who are unhappy with the terms set in the last will have few options for bringing a challenge against it. However, spouses have certain rights under Colorado law that could complicate or even undermine your plans for your property after you die.

What rights does a spouse have under Colorado law?

Spouses generally share their financial circumstances. Married couples typically have the right to claim income earned and property acquired during the marriage as shared or marital property. Each spouse can also retain some of their own separate property.

What someone owns before marriage or something they inherited would be separate property, while income from during the marriage is marital property. When one spouse dies before the other, the surviving spouse has a right to retain all of their own separate property. They also have the right to an elective share of their spouse’s estate, regardless of what that person has in their last will.

Colorado lets a surviving spouse claim up to 50% of the marital estate. If the last will has terms that give the surviving spouse less than their elective marital share, the spouse can challenge the estate plan and ask for their statutory rights.

The importance of understanding spousal inheritance rights

There is little value in investing hours of your time and financial resources in the creation of an estate plan or last will that the Colorado probate courts won’t uphold.

Ensuring that any estate plan you create integrates the statutory rights of your spouse into the terms you set will reduce the risk of a challenge that could diminish the overall value of the estate and prevent you from doing what you want with your property.