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# Divorce and Your Estate Plan in Colorado: What Changes Automatically
- URL: https://blog.denverdivorce.com/divorce-estate-plan-colorado/
- Published: 2026-09-13T21:58:10.000Z
- Updated: 2026-09-19T05:32:34.000Z
- Description: A Colorado decree revokes most gifts to a former spouse, but not the ones that matter most: ERISA retirement plans and anything you never updated. What the statute does, what it misses, the risky months between filing and decree, and how to protect the children's inheritance.
- Author: Aaron Herzberg
- Tags: Wealth Planning, Trusts

Colorado law assumes that a divorced person did not mean to leave the estate to the former spouse, and it rewrites most estate documents accordingly the moment the decree enters. That statute is useful and also a trap, because people hear "automatic" and stop. It does not reach the accounts that hold most families' wealth, it does nothing until the decree is signed, and it cannot write the new plan the children need.

The honest summary: the decree cleans up the old documents, but the estate plan a divorced parent actually needs is one nobody has written yet.

## What the Decree Revokes on Its Own

Under [C.R.S. § 15-11-804](https://law.justia.com/codes/colorado/title-15/colorado-probate-code/article-11/part-8/section-15-11-804/?ref=blog.denverdivorce.com), a divorce or annulment revokes every revocable disposition of property that the divorced person made to the former spouse in a "governing instrument," and every nomination of the former spouse to serve as personal representative, trustee, conservator, agent, or guardian. It also revokes gifts and nominations in favor of the former spouse's relatives, and it converts joint tenancy property into a tenancy in common, ending the survivorship right.

"Governing instrument" is defined broadly in the probate code: a will, a revocable trust, a deed, an insurance or annuity policy, a payable-on-death account, a security registered in beneficiary form, a pension or retirement plan, and an instrument creating a power of attorney. So the decree, by itself, strikes the former spouse as beneficiary of the will and the revocable trust, as agent under the financial and medical powers of attorney, as payee on a bank account or beneficiary deed, and as beneficiary of a life insurance policy not governed by federal law.

Three limits are built in. The statute applies only to a decree that ends the marriage; a decree of legal separation does not trigger it. It yields to the express terms of the instrument, a court order, or a property settlement contract, so a decree that requires life insurance for the former spouse controls. And a bank or insurer that pays the old beneficiary before written notice of the divorce is protected; the remedy is against the recipient.

![The Beaumont House, Pueblo, Colorado](https://storage.ghost.io/c/9c/7f/9c7f0f22-0ab1-4be3-88a9-68ce015e9524/content/images/2026/09/divorce-estate-plan-colorado.jpg)

The Beaumont House, Pueblo, Colorado. Photo: Carol M. Highsmith, Library of Congress (public domain).

## What It Does Not Touch

The largest gap is federal. ERISA preempts state revocation-on-divorce statutes as applied to employer retirement plans (*Egelhoff v. Egelhoff*, U.S. 2001), and a plan administrator must pay the beneficiary named in the plan documents even when the former spouse waived the benefit in the divorce (*Kennedy v. Plan Administrator for DuPont*, U.S. 2009). A 401(k) that still names the ex-spouse goes to the ex-spouse. Colorado's statute says a former spouse who receives a preempted payment must return it, but that is a lawsuit filed after the money is gone. Federal employee life insurance follows the same rule (*Hillman v. Maretta*, U.S. 2013).

The statute also leaves alone anything that is not revocable. An irrevocable life insurance trust naming the spouse stays as written. A designation the divorced person makes after the decree is a new act, not revoked. Life insurance the decree requires as security for maintenance or child support stays in force for the former spouse because the decree says so. And nothing in Colorado law obliges the former spouse to leave anything to the children of the marriage; that side of the family's plan is outside the divorced person's control.

The practical rule is to treat the statute as a backstop and change every document and designation by hand.

## The Window Between Filing and Decree

Section 15-11-804 does nothing until the decree enters. A spouse who dies while the case is pending, which in a contested Colorado divorce can be a year or more, dies married. The survivor takes under the existing will and beneficiary designations, or, with no will, an intestate share that is a fixed dollar amount plus half the balance where the decedent has children from another relationship. Even against a will that cuts the spouse out, Colorado's elective share lets a surviving spouse claim up to half of the marital-property portion of the augmented estate, a portion that scales with the length of the marriage.

What can be changed during the case is limited by the automatic temporary injunction in [C.R.S. § 14-10-107(4)(b)](https://law.justia.com/codes/colorado/title-14/dissolution-of-marriage-parental-responsibilities/article-10/section-14-10-107/?ref=blog.denverdivorce.com). It bars either party, without the other's written consent or a court order, from canceling, modifying, or letting lapse any life insurance policy naming the other party or the children as beneficiary. Changing the beneficiary is modifying the policy. Separately, federal law makes the spouse the default beneficiary of a 401(k) and requires the spouse's written consent to name anyone else.

What can be changed is the rest. A will is revocable and transfers nothing during life, so a new will naming the children, a trust for them, and a different personal representative is permitted and prudent. So are a new financial power of attorney, medical durable power of attorney, and living will; nobody wants the spouse they are divorcing making end-of-life decisions. The new will should state that the spouse is intentionally omitted, subject to the elective share.

## Guardianship of the Children

A parent may nominate a guardian for a minor child by will or other signed writing under C.R.S. § 15-14-202, but the nomination does not override the other parent's rights. If one parent dies, the surviving parent ordinarily has the children. The nomination matters if both parents die, if the other parent's rights have been terminated, or if the other parent is found unfit, and it tells the court whom the deceased parent trusted. Name a guardian of the person and, separately, a trustee for the money. Otherwise the surviving parent, as conservator, controls whatever the children inherit until they come of age.

## Protecting the Children's Inheritance

The divorce court cannot do this part. Colorado courts have held for decades that a dissolution court has no authority to impress a trust for the children on a party's share of the property (*Giambrocco v. Giambrocco*, Colo. 1967; *Ferguson v. Olmsted*, Colo. 1969). Each parent has to do it in his or her own documents, and the risk is specific: a divorced parent remarries, leaves everything to the new spouse "who will take care of the kids," and the new spouse's own plan, or intestacy, sends it elsewhere. Even a will leaving everything to the children can be cut in half by a new spouse's elective share.

- A revocable trust, or a testamentary trust in the will, that holds each child's share until an age the parent chooses, with an independent trustee rather than the former spouse.
- Beneficiary designations on retirement accounts and life insurance that name the trust, not a minor child directly.
- A marital agreement in any new marriage, which under the Colorado Marital Agreements Act can waive the new spouse's elective share.
- Life insurance owned by an irrevocable trust if the estate is large enough to matter.
- A named successor owner on 529 plans, which belong to the parent, not the child.

## The Week After the Decree

None of this is difficult. It is simply not done, because the decree feels like the end.

- Sign a new will and, if there is one, restate the revocable trust.
- Change the beneficiary on every 401(k), 403(b), IRA, pension, annuity, life insurance policy, and payable-on-death or transfer-on-death account, in writing, with the institution's confirmation. Keep any designation the decree requires.
- Sign a new financial power of attorney, medical durable power of attorney, and living will, and revoke the old ones in writing.
- Record deeds and beneficiary deeds consistent with the property division; the decree alone does not change county records.
- Submit any PERA or public-plan order within 90 days and any ERISA QDRO promptly.
- Update the guardian nomination and give copies to the people named.

## Talk to a Denver Divorce Attorney About Divorce and Estate Planning

Aaron Herzberg is a divorce attorney in Greenwood Village, Colorado, serving Denver and the Front Range, with more than 30 years of trial experience and a practice focused on divorce, custody, and financially complex family law. Estate documents should be reviewed the week a case is filed, not the week it ends, because the months in between are when the old plan does the most damage. A first meeting is a paid consultation, not a free call and not a sales pitch.

Read the full guide on DenverDivorce.com: [Trust Interests in a Colorado Divorce](https://denverdivorce.com/practice-areas/trust-interests.html?ref=blog.denverdivorce.com).

*Educational information only, not legal advice. Reading this article does not create an attorney-client relationship.*