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Jim Flynn: When laws on divorce, probate intersect

Jim Flynn: When laws on divorce, probate intersect

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As you might expect, divorce law and probate law sometimes intersect.

A final divorce decree terminates all rights to inherit from a former spouse.

Occasionally, however, divorcing spouses enter into an agreement that continues after one of them dies.

The Colorado Court of Appeals ruled in September on such a case.

When Carl Williams and Roberta-Diane Perna were married in 1988 (he was 60; she was 42), they signed a prenuptial agreement. This agreement said that if they divorced, Carl would make monthly payments to Roberta-Diane until her death or remarriage. It said nothing about what would happen if Carl died before Roberta-Diane died or remarried.

The marriage ended eight years later, in 1996, and, as part of the divorce, they entered into another agreement. This agreement fixed the amount of the monthly payments Roberta-Diane would receive at $4,379 and again said the payments would continue until her death or remarriage.

Again the agreement said nothing about what would happen if Carl died before Roberta-Diane and she had not remarried.

Carl made the payments for the next 19 years, until he died in 2015. Then, the personal representative for his estate (and who no doubt stood to inherit) stopped making the payments. This resulted in an unhappy Roberta-Diane, who filed a lawsuit claiming that, since she was neither dead nor remarried, she should continue to receive the payments. The trial court ordered the estate to keep making the payments and, since she won the suit, her attorney fees.

The personal representative appealed the lower-court decision, and the Court of Appeals undid Roberta-Diane’s initial victory. It ruled Carl’s estate had no obligation to continue the payments and the estate, and not Roberta-Diane, was the prevailing party.

Roberta-Diane ended up getting nothing and having to pay the estate’s attorneys fees. (Important note here: The only thing worse than having to pay your lawyer is having to pay someone else’s lawyer.)

The Court of Appeals’ decision was based on a single section of the Colorado dissolution of marriage act. This section says that, “unless otherwise agreed in writing,” future maintenance obligations end with the death of either spouse. Because neither agreement contained a clear statement that the monthly payments were to continue after Carl’s death, the Court of Appeals concluded the “agreed-in-writing” requirement had not been satisfied. (The lesson to divorcing parties is: Any agreement addressing future financial obligations needs to hit this effect-of-death nail on the head.)

Silver anniversary

Although those of you with long memories probably already know this, Nov. 22 will mark the 25th anniversary of this column first appearing in The Gazette (back then, the Gazette Telegraph). Thanks to all of you who have been loyal readers during some or all of this time. And, thanks to all of the editors and publishers at the paper who, notwithstanding what I’m sure were moments of doubt, have hung in there with me. Thanks also to my longtime legal assistant, Gail Deal, who through her proofreading and (mostly polite) suggestions for change has greatly improved the product. A Best of Jim Flynn’s Money & the Law compilation is in the works and will be available soon.



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