We often talk about prenups in terms of divorce, but another big part of a prenup is death. The reason that death gets mentioned in a prenup is because the law in Colorado gives surviving spouses rights when their spouse dies. Some of those rights include the right to take a portion of their spouse’s property, to receive an allowance from their deceased spouse’s estate, and to stay in the house when the other dies. Even if the surviving spouse is excluded from the deceased spouse’s will, the survivor can contest the will to enforce their rights under state law.  

And the only way to waive those rights is in a pre or postnup. Take, for example Grace and Frankie. They both had children from different relationships and met later in life. Both Grace and Frankie make wills and leave all their assets to their respective children – Grace has two girls and Frankie has two boys.  

Grace predeceases Frankie and Frankie contests Grace’s will, taking the maximum allowance and property from her estate, leaving a much smaller inheritance for Grace’s children than what Grace intended. Frankie dies a few years later and her children get much more than they would have gotten if Frankie predeceased Grace because now Frankie’s estate includes part of Grace’s estate. That is a very unfair result for Grace and her two girls and clearly not what Grace intended for her legacy.  

Folks who have blended families want prenups not only to avoid bad results, but also to save their families and each other the trauma of contentious litigation.