2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 2 - Elective-Share of Surviving Spouse
§ 15-11-213. Waiver of Right to Elect and of Other Rights

1. Any affirmation, modification, or waiver of a marital right or obligation, as defined in section 14-2-302, C.R.S., made on or after July 1, 2014, is unenforceable unless the affirmation, modification, or waiver is contained in a premarital or marital agreement, as defined in section 14-2-302, C.R.S., that is enforceable under part 3 of article 2 of title 14, C.R.S.
2. Any affirmation, modification, or waiver of a marital right or obligation made before July 1, 2014, is governed by the law in effect at the time the affirmation, modification, or waiver was made.

History. Source: L. 2014: Entire part R&RE,(HB 14-1322), ch. 296, p. 1232 , § 2, effective August 6.

This section is similar to former § 15-11-207 as it existed prior to 2014.

Law reviews. For article, “Pre-Nuptial Agreements Revisited”, see 11 Colo. Law. 1882 (1982). For article, “Colorado's New Uniform Premarital and Marital Agreements Act”, see 43 Colo. Law. 57 (March 2014).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

A complete property settlement entered into in anticipation of divorce is a waiver “unless it provides to the contrary.” A property settlement that disposes of every item of property owned by the parties at the time of execution is complete within the meaning of this section. In re Estate of Morrell, 687 P.2d 1319 (Colo. App. 1984).

Nuptial agreements are valid and enforceable and will generally be given full force and effect. Lopata v. Metzel, 641 P.2d 952 (Colo. 1982).

Nuptial agreement will be upheld unless the person attacking it proves fraud, concealment, or failure to disclose material information, and the burden of proof does not shift to the estate even if the amount received by the surviving spouse under the nuptial agreement is disproportionate to the value of the decedent's estate. In re Estate of Lewin v. First Nat'l Bank, 42 Colo. App. 129, 595 P.2d 1055 (1979).

Once the proponent of an antenuptial agreement has established the existence of the agreement itself, the party contesting the validity of the antenuptial agreement has the burden of proving fraud, concealment or failure to disclose material information. Lopata v. Metzel, 641 P.2d 952 (Colo. 1982).

Confidential relationship requires good faith and fairness in dealings. Parties to nuptial agreements do not deal at arm's length as a confidential relationship exists between them, and each has a responsibility to act with good faith and fairness to the other. Such a responsibility contemplates that each party will make fair disclosure of his or her assets to the prospective spouse prior to the execution of the agreement. Lopata v. Metzel, 641 P.2d 952 (Colo. 1982).

What constitutes fair disclosure. Fair disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other. Each party has a duty to consider and evaluate the information received before signing an agreement since they are not assumed to have lost their judgmental faculties because of their pending marriage. Lopata v. Metzel, 641 P.2d 952 (Colo. 1982).

Absence of detailed disclosure insufficient to set aside agreement. Fair disclosure is not synonymous with detailed disclosure such as a financial statement of net worth and income, and the mere fact that detailed disclosure was not made will not necessarily be sufficient to set aside an otherwise properly executed agreement and will not raise a presumption of fraudulent concealment. Lopata v. Metzel, 641 P.2d 952 (Colo. 1982).

Antenuptial agreement not sufficiently specific to constitute waiver. In re Bradley's Estate, 106 Colo. 500 , 106 P.2d 1063 (1940).

Where a valid antenuptial contract contained a specific provision that the wife to-be “doth acquit, release and discharge” the other contractor from all claim to a “widow's award”, she thereby waived her right to any future demand for a widow's allowance against his estate, under the statute or otherwise. In re Griffee's Estate, 108 Colo. 366 , 117 P.2d 823 (1941).