Chayet & Danzo, LLC Chayet & Danzo, LLC www.Coloradoelderlaw.com
Call for a Free Initial Consultation
Direct 303-355-8500
Toll-Free 1-866-873-6596
Email Us
Compassion, talent and dedication: guiding colorado families and Their Trusted Advisors During Times of Need

Can spousal support survive after the payor dies?

This question involves two separate legal practice areas: family law and probate law. In September, the Colorado Court of Appeals ruled that in most situations spousal support/maintenance payments end when the obligor (spouse ordered to pay it) dies.

In cases where the intent is to continue support payments for the life of the person receiving it, there must be clear language to that effect. This case provides an example of why it is often important to bring in an estate planning attorney during the divorce process.

 

What happened in the case?

The husband and wife were older – he was 60 and she was 42 – when they married in 1988. They signed a premarital agreement requiring the husband to pay wife monthly payments determined by the number of years they were married if things didn’t work out.

The marriage lasted eight years and the husband and wife finalized a separation agreement that included, “Husband shall pay to the Wife monthly payments in the amount of $4,379, commencing … and continuing monthly thereafter until the remarriage or death of the Wife, whichever occurs first.” The husband paid each month until his death in November 2015. His ex-wife received her last support payment in December of that year.

The litigation starts

The former wife asked the family court to substitute her ex-husband’s estate in the divorce action along with filing a suggestion of death. The district court ruled in her favor finding his estate was obligated to continue making the support payments.

However, the appeals court did not agree and reversed. Here is why: they interpreted the language differently in a de novo review (a standard that provides less deference to the district court opinion). Interestingly, there had not been any recent Colorado cases applying the current statutory agreement language.

Historically, spousal maintenance ended when the obligor died. Colorado cases from before the current statute also found the language “so long as wife may live” was not enough to indicate that a husband’s estate would have to continue making payments. Cases from other states were also reviewed. The most recent from Florida also found that “until wife becomes remarried or deceased” did not require the husband’s estate to keep making payments.

When considering the age and needs of the parties during the divorce process, it is crucial that specific language be included if spousal maintenance is intended to continue after the death of the obligor.

This post is a bit more technical that many. Divorce is a life event where it is crucial to request a comprehensive review of your estate plan. And doing so at the beginning of the divorce process can avoid unpleasant surprises.

No Comments

Leave a comment
Comment Information

Watch Our Firm Video

We are the premier Elder Law firm in the Colorado region. We set ourselves apart from other law firms in the area with our talent, dedication, compassion and ability of our attorneys to handle any case in Elder Law. We serve Colorado families with experience and dignity in your time of need.

View More Videos

Denver Office
650 S.Cherry St., Suite 710
Denver, CO 80246

Toll Free: 1-866-873-6596
Phone: 303-872-5980
Fax: 303-355-8501
Denver Law Office Map

Edwards Office
105 Edwards Village Blvd.
#D-201
Edwards, CO 81632

Toll Free: 888-472-1088
Toll Free: 1-866-873-6596
Fax: 303-355-8501
Edwards Law Office Map

Aspen Office
600 East Hopkins Avenue
Suite 301
Aspen, CO 81611

Toll Free: 888-472-1088
Toll Free: 1-866-873-6596
Fax: 303-355-8501
Aspen Law Office Map

  • Rated by Super Lawyers Macro Chayet SuperLawyers.com
  • Rated by Super Lawyers Frank J. Danzo, III  SuperLawyers.com
  • Member National Academy of Elder Law Attorneys, Inc. TM
  • Avvo Rating 10.0 Superb Top Attorney Elder Law
  • 2015 Five Star Professional Wealth Manager Multi-Year Winner
  • Our new 2015 Medicaid Book: how to protect your Family's Assets from devastating nursing home costs
  • Proud Sponsor 2015-Denver Colorado Senior Law Day
  • Peer Review Rated For Ethical standards & Legal Ability TM Martindale Hubbell
  • Haystack