Divorce is an emotionally and legally challenging procedure, but when a spouse dies during the process, it may leave you not only with mixed emotions but also with pressing legal questions. Similarly, you may have questions about what happens to your own estate if you die before your divorce finalizes.
What happens to a divorce case in Colorado if one spouse dies while the case is still pending and no final dissolution decree has been entered by the court? Unlike other cases, such as personal injury or breach of contract cases which survive the deceased and proceed through court, a divorce case ends immediately upon the death of one of the parties. Colorado court considers the objective of divorce — to legally part — already fulfilled when one spouse dies. So what does that mean for you and your estate?
Understanding Death During Divorce
A marriage is more than a vow to spend a life together, it’s also a binding legal contract that continues right up until the moment the court enters the final divorce decree. That means the surviving spouse can and does inherit at least 50 percent of your estate according to Colorado’s “Spousal Elective Share” section of probate and inheritance law. This part of probate law is meant to ensure resources for a spouse whose partner decides to leave them nothing. In most cases, the law holds even when a spouse disinherits their partner in a will before the death. The probate court disregards the fact that a divorce proceeding was underway before the death.
What Is Augmented Estate?
Not only is a spouse entitled to an elective share of 50 percent of the marital estate in the event of the other party’s death before a divorce is final, but the share includes the decedent’s augmented estate. This means it expands to include up to half of all benefits paid to beneficiaries through payable-upon-death accounts including retirement accounts. Depending on the number of heirs, a spouse is immediately entitled to up to $360,000 as well as an elective share amount of the remainder of the estate on a sliding scale from 5 to 50 percent depending on the length of the marriage. If the deceased party leaves no heirs behind, the spouse can take the entire amount of the augmented estate even if a divorce was in process.
Understanding Spousal Election and Inheritance
Spousal election means the transfer of the estate to the spouse doesn’t happen automatically. Instead, the surviving party must elect to take their share within 9 months of the death or no more than 6 months after the admission of the will to probate.
Even a party in the divorce who tries to prevent a spouse from inheriting assets and properties by transferring them to a relative or child, or listing a child or relative as a beneficiary on bank accounts, is not likely to succeed since the Colorado court typically transfers them back to probate as part of the augmented estate.
Many Denver divorce attorneys advise clients to name a power of attorney to make major financial and medical decisions for them before filing a divorce decree. This provides some peace of mind and protection in case of incapacity during divorce proceedings.
Once a divorce becomes final and the court enters the final dissolution of marriage decree, an ex-spouse can no longer inherit, but until that time, it’s important to keep in mind the laws of spousal elective share in Colorado probate.
If you have questions about estate planning during a divorce, the skilled team at Ciancio Ciancio Brown P.C. in Denver can help you understand your rights and obligations.