Jerry Kopel

"God, for two people to be able to live together for the rest of their lives is almost unnatural."

Jane Fonda

Jane Doe and John Smith were childhood sweethearts. But fate intervened and they each married someone else. Jane had a son. John had a daughter. Thirty years later, widowed, they met again, fell in love, married, and lived happily ever after. End of story? No way!...thanks to the Probate Section of the Colorado Bar Association, author of SB 43, which passed in the l994 legislative session.

Like most people, John has a will executed early in his first marriage and then forgot about the subject. If John dies before July l,l995, Jane will be provided for. She has a right under PRESENT law to "elect" to take one-half of John's estate, under what is called an "augmented" estate.

But if John dies on or after July l,l995, Jane could be in deep trouble. It will depend on how long Jane and John have been married to each other. The Probate Section has decided that a surviving spouse shouldn't share generously in a dead spouse's estate under the facts I've presented unless the marriage has gone on for quite awhile. They have come up with a formula which is presented in CRS l5-ll-20l.

Under the formula, the surviving spouse gets five percent of the dead spouse's estate for every year the marriage endures. Once the tenth wedding anniversary has passed, the surviving spouse is entitled to fifty percent of the estate....the same fifty percent PRESENTLY available until July l,l995 from day ONE of marriage.

The obvious reason to push for such a law is to prevent "gold-diggers" from profiting. You know the scenario....decrepit 90-year-old millionaire weds chorus girl, and he dies of a heart attack soon after with a smile on his face. She gets half of his estate to the dismay of the ne'er-do-well playboy son.

Unfortunately, hard cases make bad law. A fictional "what-if" may do a lot of harm to innocent widows and widowers, but apparently the Probate Section authors felt strongly about this.

Colorado, for one example, recognizes common-law marriages, in which there is no piece of paper that says John and Jane married on June 6,l985. Under present probate law, the LENGTH of marriage wouldn't matter. After July l,l995, the DATE the common-law marriage BEGAN becomes quite important when the deceased spouse's will doesn't mention the survivor. It means extra litigation and attorney fees to try to determine, for example, whether the surviving spouse gets five or fifty percent of the estate.

The original bill presented by the Probate Section was harsher than as finally passed. It required a fifteen-year wait to reach the magic fifty percent. But Sen. Don Mares, who carried the bill for the Bar Association, forced a one-third reduction in the time frame.

Of course, this is only one paragraph in a major bill that changes the probate law on who gets what, and why. The adage that "the only thing certain in life is death and taxes, plus an occasional haircut" is accurate. This law, sooner or later, WILL affect you. But there was no mention of it in either of the major dailies as it moved through the legislature.

At present, the law on how much the surviving spouse gets when there is no will is logical and in line with the elective share allowed under the will. If the spouse survives and there are no descendants, the spouse gets all. If there are descendants, the spouse gets half.

The new law changes this. The surviving spouse could get all, three-fourths, or one-half, depending on whether all the descendants were related to both of them, or one of them, or if the descendants were adults, or if a parent of the decedent was alive.

When the Probate Code was enacted in l973 (I was the original co-sponsor for chief sponsor Rep. Ron Strahle) one of its purposes was to make the language understandable and logical to a non-lawyer. Unfortunately, if you examine this latest revision on top of other recent revisions, it will be obvious this law is no longer understandable to anyone who doesn't specialize in probate law.

If you have planned your estate based on present law, either with or without a will, the legislature may have changed how your property will actually go, and to who. Of course, the attorney who handles your estate planning will likely contact you before July l,l995 and point this out because a substantial revision to the Probate Code almost demands that an attorney ask a client to come in and review the estate planning.

That of course generates business and income for attorneys which otherwise would not have occurred. And while there is no fiscal impact on government through this law, the fiscal impact on Colorado residents will be tremendous.

The three original sponsors of SB 43 were Sen. Mares, Meiklejohn and Rep. Kaufman. None of the other 97 legislators decided to add their names as co-sponsors as the bill went through the process. That was a significant change from the many co-sponsors added to the l973 Probate Code revision.


Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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