dissenting:
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 agreement. In my view basic considerations of fairness require that the administrator of the estate and the decedent’s heir, both of whom are raising the antenuptial agreement as a bar to the surviving spouse’s elective share, should bear the burden of proving fair disclosure to the surviving spouse and knowledgeable waiver by her of her marital rights of inheritance.
Section 15 — 11—201, C.R.S.1973, provides a surviving spouse with a right to an elective share of one-half of the decedent’s augmented estate. This statutory right is intended to insure a surviving spouse a fair share in the decedent’s estate in the event the decedent has failed to make adequate provision for her by will. Recognizing that a decedent’s failure to provide support for a surviving spouse may place that burden upon the state, we have traditionally imposed a high standard of proof for waiver of a surviving spouse’s statutory widow’s allowance. See, e.g., McLaughlin v. Craig, 117 Colo. 67, 184 P.2d 130 (1947); In re Bradley’s Estate, 106 Colo. 500, 106 P.2d 1063 (1940); In re William’s Estate, 101 Colo. 262, 72 P.2d 476 (1937). For purposes of this evidentiary requirement, I see no difference between a claim for a widow’s allowance and claim involving a surviving spouse’s elective share. The majority’s opinion, however, cuts against the grain of this requirement.
The Dead Man’s statute prohibits a party making a claim against the estate of a deceased person from testifying in the first instance as to any transactions with the deceased. Since this statute renders the surviving spouse incompetent to testify regarding the decedent’s failure to make fair disclosure of his assets to her at the time of the execution of the agreement, she is significantly impaired in her ability to prove anything whatever about the agreement. I believe the appropriate allocation of proof in this case should be that, once the surviving spouse asserts her right as a spouse to her elective share, the party asserting the antenuptial agreement as a bar to that statutory claim should bear the burden of establishing the validity of the antenuptial agreement. This allocation of proof places the burden on that party which most likely will have information concerning what disclosures,, if any, were made when the agreement was executed.
In my opinion placing the burden of proof on the party asserting the validity of the agreement comports with section 15-11— 204, C.R.S.1973 (1981 Supp.), of the Colorado Probate Code, which originally became effective on July 1,1974, and now provides:
“The rights of an election of a surviving spouse and the rights of the surviving spouse to exempt property allowance, family allowance, and homestead exemption may be waived, wholly or partially, before or after marriage, by written contract, agreement or waiver signed by the party waiving after fair disclosure." (Emphasis added).1
I read this section as requiring the party who raises an antenuptial agreement as a *958defense to a surviving spouse’s elective share to prove that fair disclosure was made to the surviving spouse before the antenuptial agreement was executed. In this case the issue of waiver arose in the course of a proceeding which commenced after the effective date of the Probate Code. Under these circumstances I see no reason not to apply section 15-11-204 to this case. See section 15-17-101(1) and (2), C.R.S.1973 and 1981 Supp.
The injustice of placing the burden of proof on the surviving spouse in this case is apparent from the findings and conclusions of the probate court. The court found that the antenuptial agreement was drafted by the decedent’s attorney who failed to advise the surviving spouse either of her marital rights or of the effect of executing the agreement. Additionally, the court noted that there was no evidence establishing that the surviving spouse, whose estate was grossly inferior in value to that of the decedent, had actual knowledge of the nature and extent of the decedent’s assets when the agreement was executed. On the basis of these findings the court concluded that the parties asserting the antenuptial agreement as a bar to the surviving spouse’s claim have “failed to prove knowledgeable waiver and fair disclosure” and, under these circumstances, the surviving spouse “should not fairly be bound by her execution of the instrument.” Nevertheless, the probate court felt bound to follow Colorado appellate decisions which placed the burden of proof upon the party contesting the validity of the antenuptial agreement.
Those Colorado decisions relied upon by both the probate court and the majority in resolving this matter did not consider the allocation of the burden of proof in the context of the Dead Man’s statute. See Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969); In re Estate of Stever, 155 Colo. 1, 392 P.2d 286 (1964); In re Marriage of Ingels, 42 Colo.App. 245, 596 P.2d 1211 (1979); In re Estate of Lewin, 42 Colo.App. 129, 595 P.2d 1055 (1979); Linker v. Linker, 28 Colo.App. 131, 470 P.2d 921 (1970). To the extent that these cases might be read broadly to control the burden of proof in a case, as here, involving a surviving spouse who is prohibited from testifying under the Dead Man’s statute, I would no longer follow them. “Stare decisis is not an iron mold into which every utterance by a Court, regardless of circumstances, parties, economic barometer and sociological climate, must be poured, and, where, like wet concrete, it must acquire an unyielding rigidity which nothing later can change.” Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 511, 208 A.2d 193, 205 (1965). Rather, when judicial precedent has the effect of prohibiting a party from presenting necessary evidence in connection with an important statutory claim, the precedent itself is amiss and should be discarded. I would reverse the judgment and, based upon the detailed findings and conclusions of the probate court, would remand for the entry of judgment in favor of the surviving spouse.
I am authorized to say that DUBOFSKY, J., joins me in this dissent.
. The homestead exemption was added to section 15-11-204 in 1981. In all other respects *958the present statute is identical to the original enactment in 1973.