Lewin's Estate, Matter of

• Decision Date: 25 January 1979
• Docket Number: No. 78-154,78-154
• Citation: 42 Colo.App. 129,595 P.2d 1055
• Parties: In the Matter of the ESTATE of Lewis H. LEWIN, Deceased, Emilie Orban Lewin, Petitioner-Appellee and Cross-Appellant, v. The FIRST NATIONAL BANK OF DENVER, Personal Representative of the Estate of Lewis H. Lewin, Deceased, Respondent-Appellant and Cross-Appellee. . II
• Court: Colorado Court of Appeals

Page 1055

595 P.2d 1055

42 Colo.App. 129

In the Matter of the ESTATE of Lewis H. LEWIN, Deceased,

Emilie Orban Lewin, Petitioner-Appellee and Cross-Appellant, v. The FIRST NATIONAL BANK OF DENVER, Personal Representative

of the Estate of Lewis H. Lewin, Deceased,

Respondent-Appellant and Cross-Appellee.

No. 78-154.

Colorado Court of Appeals, Div. II.

Jan. 25, 1979.

Rehearing Denied Feb. 22, 1979.

Certiorari Denied June 4, 1979.

Mason, Reuler & Peek, P. C., Maurice Reuler, Rosanne M. Hall, Denver, for petitioner-appellee and cross-appellant.

Holme, Roberts & Owen, Peter H. Holme, Jr., William S. Huff, Martha T. Collins, Denver, for respondent-appellant and cross-appellee.

ENOCH, Judge.

Respondent, personal representative of the estate of Lewis Lewin, appeals from a judgment invalidating a post-nuptial agreement and allowing petitioner, wife of the decedent, to take an elective share of the estate contrary to the terms of the agreement. We reverse and remand.

Petitioner and Lewin were married in 1972 when petitioner was 70 and Lewin was 87. Each had issue by a prior marriage. Petitioner, a woman of artistic talent, had immigrated to the United States with her first husband in 1938. She learned to speak English and worked as an interior designer and art teacher in Chicago and Colorado Springs. When her first husband died, petitioner obtained legal counsel and successfully collected the spouse's elective share against his will.

Prior to the remarriage, petitioner supported herself on a modest wage earned by continuing her artistic endeavors. She met Lewin through social activities at a time when his health was deteriorating. He was suffering from Parkinson's disease, and before their marriage he had spent several months in a nursing home.

Lewin, a successful businessman, had acquired a considerable estate before he met and married petitioner. Prior to their marriage, Lewin consulted an attorney regarding a pre-nuptial agreement. Although the papers were drawn up, they were never signed. Two months after the marriage he again consulted an attorney, this time with regard to a property settlement in the event of divorce or separation. He advised petitioner to employ her own attorney, which she did. Finally Lewin decided to have a post-nuptial agreement drawn up, wherein he and petitioner agreed to waive the surviving spouse's elective share of the property in the event of the death of either, and Lewin agreed to give petitioner $40,000 in cash immediately. Petitioner did not consult her attorney regarding the agreement but both parties signed it in the presence of Lewin's attorney.

Lewin died three years later, and petitioner filed for an elective share of the estate, urging that the agreement was invalid because she was not represented by an attorney and because there was no full disclosure of assets by Lewin. The probate court stated that "the wife was entitled to independent advice from an independent counsel and that should have been insisted upon after supplying a list of the holdings and assets of the husband's estate." Accordingly, the court found the agreement was invalid and permitted petitioner to take an elective share against the will. The court also held that the $40,000 which petitioner had already received was not a gift, as she had maintained during the trial, but was an advancement because Lewin had intended the payment to be consideration for the agreement.

Respondent argues that the findings of the probate court are insufficient for this court to ascertain whether the correct law was applied. Respondent also urges that the findings are not supported by substantial evidence. We agree that they were insufficient, and therefore reverse the judgment. Because the probate judge is now deceased, this cause must be remanded for a new trial.

When a matter is tried to the court without a jury, the court is under a duty to make findings of fact and to state conclusions of law separately. C.R.C.P. 52(a). Even though a court has made findings, they must be sufficiently clear to indicate on appeal the basis of the court's decision. See Murray v. Rock, 147 Colo. 561, 364 P.2d 393 (1969); Mowry v. Jackson, 140 Colo. 197, 343 P.2d 833 (1959). Here, the court found that petitioner should have been supplied with a list of Lewin's assets and that Lewin should have insisted that she retain independent counsel. It is unclear from the court's findings, however, whether the court relied solely on those two factors to invalidate the agreement. If so, such a conclusion would be contrary to the law.

Nuptial agreements, whether executed before or after the marriage, are enforceable in Colorado. Remington v. Remington, 69 Colo. 206, 193 P. 550 (1920); § 15-11-204, C.R.S.1973. A nuptial agreement will be upheld unless the person attacking it proves fraud, concealment, or failure to disclose material information. In re Estate of Stever, 155 Colo. 1, 392 P.2d 286 (1964); Linker v. Linker, 28 Colo.App. 131, 470 P.2d 921 (1970). 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 Abbott, Colo.App., 571 P.2d 311 (1974). Thus, in order for petitioner to...