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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.

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