These last few weeks I've encountered several people who want to do their estate planning without the knowledge of their spouse.  The goal is to disinherit the spouse entirely.

However, that's not so easy to do in Colorado.  We have two provisions which are designed to provide for the surviving spouse regardless of what the will says.

First, we have family and spousal allowances.  These provide for the spouse to receive as much as $50,000 from the probate estate even if the spouse is not provided for in the will.  These allowances also take priority over most creditors, so the spouse and dependent children receive something even if the estate owes more than it has. 

Of course, to get around this is pretty easy.  All you have to do is make sure there is nothing in the probate estate.  The allowances don't apply if there are no probate assets.  Assets in trust or joint tenancy or passing by beneficiary designation are not included.

The second spousal right is harder to avoid.  Under Colorado, the surviving spouse gets an "elective share" of the deceased spouse's estate regardless of what any will or living trust says.  The elective share is applied to the "augmented estate", which pretty much means all the assets owned or controlled by both the surviving spouse and the deceased spouse.  So, if the deceased spouse had assets of $100,000 and the surviving spouse has assets of $50,000, you apply the elective share to $150,000. 

The amount of the elective share depends on how long the marriage lasted.  It starts at 5% and rises 5% a year until it caps out at 50%.  So a marriage lasting ten years or more can have an elective share of 50%.  In our example above, if we apply the elective share of 50% to the augmented estate of $150,000, the surviving spouse is entitled to $75,000 of the total.  Since the surviving spouse only has $50,000 of his own, he can elect to take $25,000 of the deceased spouse's assets, even if he was disinherited in the will or living trust.

The augmented estate is pretty comprehensive, covering rights in joint tenancy and retirement accounts and other assets we normally don't associate with a will.  I tell clients as long as you control it, it's generally part of the augmented estate. 

So, if you want to disinherit your spouse completely, you may have to give up some control now.