Probate vs Stated Beneficiaries

[Arrel]

In Colorado, the law provides that the surviving spouse in a long term marriage must receive 50% of the estate by will or may elect against the will if the deceased's will failed to award the surving spouse 50% of the deceaseds assets.

My question refers to the case where the great bulk of the deceaseds assets were in accounts at financial institutions (banks, credit unions, brokerage accouunts, etc). Assuming that each of these accounts specified beneficiaries other than the surviving spouse, the result would be that the surviving spouse might not receive the 50% otherwise rightly theirs.

Question: What can the surviving spouse do, if anything, to insure receiving at least 50% of the decedants assets.

RLP

 

[ALawyer]

A will or probate only applies to assets that are held in the deceased's name, and not assets, such as IRAs, 401Ks and life insurance that name beneficiaries, or like real estate held in joint tenancy that pass by operation of law to the surviving joint tenants.

Some states have laws that, in determining how the elective share works, specifically count many non-probate assets for determining the elective share. I have no idea how Colorado's laws operate however.

To "protect yourself", you would want a lawyer to prepare an agreement that your spouse goes along with....

However, before you get off completely on YOUR rights, you should realize that your rights are not necessarily to get half of everything your spouse had at time of death. Unless you live in a community property state, what your spouse earned during the martriage is not necessarily yours, or half yours. (Absent an agreement, it would be half yours in a community property state.) But even in a community property state the assets a spouse brought into the marriage or inherited or received by gift during the marriage is NOT in any way the property of the other spouse....

The provisions in most states laws for an elective share are not intended to change things at death and give a spouse half of the other's property, just to make sure that some recognition is given to ther marriage and making sure a spouse is not totally cut out. How each state does that differs.

------------------
To retain a lawyer, I suggest you go to http://AttorneyPages.com which is endorsed by the Association of Trial Lawyers of America. This response is intended as general information only and NOT LEGAL ADVICE. As you are not my client I have no obligation of any kind to you.

[This message has been edited by ALawyer (edited October 24, 2000).]