Lopata v. Metzel

I respectfully dissent. Admittedly, an antenuptial agreement serves a valid purpose in making it possible for prospective marital partners to permit their estates to pass upon death to persons other than the surviving spouse. However, as this case demonstrates, the cumulative effect of the majority’s allocation of the burden of proof and of the Dead Man’s statute, section 13-90-102, C.R.S.1973 (1981 Supp.), creates what is virtually an insurmountable barrier to a surviving spouse’s ability to establish her right to take an elective share of the decedent’s estate in the face of an antenup-tial…