2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 1 - Intestate Succession
§ 15-11-102. Share of Spouse

The various possible circumstances describing the decedent, his or her surviving spouse, and their surviving descendants, if any, are set forth in this section to be utilized in determining the intestate share of the decedent's surviving spouse. If more than one circumstance is applicable, the circumstance that produces the largest share for the surviving spouse shall be applied. The intestate share of a decedent's surviving spouse is:

1. The entire intestate estate if:
   1. No descendant or parent of the decedent survives the decedent; or
   2. All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

2. The first three hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
3. The first two hundred twenty-five thousand dollars, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
4. The first one hundred fifty thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
5. (Deleted by amendment, L. 2009, (HB 09-1287), ch. 310, p. 1671, § 3, effective July 1, 2010.)
6. The dollar amounts stated in this section shall be increased or decreased based on the cost of living adjustment as calculated and specified in section 15-10-112.

History. Source: L. 94: Entire part R&RE, p. 976, § 3, effective July 1, 1995. L. 95: Entire section amended, p. 352, § 1, effective July 1. L. 2009: Entire section amended,(HB 09-1287), ch. 310, p. 1671, § 3, effective July 1, 2010.

This section is similar to former § 15-11-102 as it existed prior to 1995.

For the descent and distribution of property of aliens, see § 15-11-111 . For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101 .

COMMENT

Purpose and Scope of 1990 Revisions. This section was revised in 1990 to give the surviving spouse a larger share than the pre-1990 UPC. If the decedent leaves no surviving descendants and no surviving parent or if the decedent does leave surviving descendants but neither the decedent nor the surviving spouse has other descendants, the surviving spouse is entitled to all of the decedent's intestate estate.

If the decedent leaves no surviving descendants but does leave a surviving parent, the decedent's surviving spouse receives the first $300,000 plus three-fourths of the balance of the intestate estate.

If the decedent leaves surviving descendants and if the surviving spouse (but not the decedent) has other descendants, and thus the decedent's descendants are unlikely to be the exclusive beneficiaries of the surviving spouse's estate, the surviving spouse receives the first $225,000 plus one-half of the balance of the intestate estate. The purpose is to assure the decedent's own descendants of a share in the decedent's intestate estate when the estate exceeds $225,000.

If the decedent has other descendants, the surviving spouse receives $150,000 plus one-half of the balance. In this type of case, the decedent's descendants who are not descendants of the surviving spouse are not natural objects of the bounty of the surviving spouse.

Note that in all the cases where the surviving spouse receives a lump sum plus a fraction of the balance, the lump sums must be understood to be in addition to the probate exemptions and allowances to which the surviving spouse is entitled under Part 4. These can add up to a minimum of $64,500.

Under the pre-1990 Code, the decedent's surviving spouse received the entire intestate estate only if there were neither surviving descendants nor parents. If there were surviving descendants, the descendants to one-half of the balance of the estate in excess of $50,000 (for example, $25,000 in a $100,000 estate). If there were no surviving descendants, but there was a surviving parent or parents, the parent or parents took that one-half of the balance in excess of $50,000.

2008 Cost-of-Living Adjustments. As revised in 1990, the dollar amount in paragraph (2) was $200,000, in paragraph (3) was $150,000, and in paragraph (4) was $100,000. To adjust for inflation, these amounts were increased in 2008 to $300,000, $225,000, and $150,000 respectively. The dollar amounts in these paragraphs are subject to annual cost-of-living adjustments under Section 1-109.

References. The theory of this section is discussed in Waggoner, “The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code”, 76 Iowa L. Rev. 223, 229-35 (1991).

Empirical studies support the increase in the surviving spouse's intestate share, reflected in the revisions of this section. The studies have shown that testators in smaller estates (which intestate estates overwhelmingly tend to be) tend to devise their entire estates to their surviving spouses, even when the couple has children. See C. Shammas, M. Salmon & M. Bahlin, Inheritance in America from Colonial Times to the Present 184-85 (1987); M. Sussman, J. Cates & D. Smith, The Family and Inheritance (1970); Browder, “Recent Patterns of Testate Succession in the United States and England”, 67 Mich. L. Rev. 1303, 1307-08 (1969); Dunham, “The Method, Process and Frequency of Wealth Transmission at Death”, 30 U. Chi. L. Rev. 241, 252 (1963); Gibson, “Inheritance of Community Property in Texas -- A Need for Reform”, 47 Texas L. Rev. 359, 364-66 (1969); Price, “The Transmission of Wealth at Death in a Community Property Jurisdiction”, 50 Wash. L. Rev. 277, 283, 311-17 (1975). See also Fellows, Simon & Rau, “Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States”, 1978 Am. B. F. Research J. 319, 355-68; Note, “A Comparison of Iowans' Dispositive Preferences with Selected Provisions of the Iowa and Uniform Probate Codes”, 63 Iowa L. Rev. 1041, 1091-92 (1978).

Cross Reference. See Section 2-802 for the definition of spouse, which controls for purposes of intestate succession.

Historical Note. This Comment was revised in 2008.

Law reviews. For article, “The Validity in Colorado of Marriages by Proxy”, see 20 Dicta 283 (1943). For article, “Ten Years of Domestic Relations in Colorado -- 1940-1950”, see 27 Dicta 399 (1950). For article, “Marital Property Interests”, see 27 Rocky Mt. L. Rev. 180 (1955). For article, “Divorce Considerations Relevant to an Estate Planning Practice”, see 29 Colo. Law. 53 (Feb. 2000).

Annotator's note. Since § 15-11-102 is similar to repealed laws antecedent to CSA, C. 176, § 1, relevant cases construing those provisions have been included in the annotations to this section.

Widow is an heir. Under this section the widow takes by descent. The widow, therefore, is an heir. Anderson v. Groesbeck, 26 Colo. 3 , 55 P. 1086 (1899); Binkley v. Switzer, 75 Colo. 1 , 223 P. 757 (1923); Page v. Elwell, 81 Colo. 73 , 253 P. 1059 (1927).

Widow of testator's son who dies intestate takes whole estate. Daniels & Fisher Realty Co. v. Kenyon, 261 F. 407 (D. Colo. 1919 ).

Widow does not waive her right to take as an heir by tendering will for probate. A widow by tendering the will of her deceased husband for probate does not vouch for its validity, nor waive her right to take under the statute, nor her right to claim all the property of the estate undisposed of by the will, as the sole heir. Blatt v. Blatt, 79 Colo. 57 , 243 P. 1099 (1926).

Widow cannot be deprived of her rights without her written consent. Under this and § 15-11-501 , a husband cannot devise or bequeath away from his wife more than one-half of his property without her written consent executed after his death, and where he agrees to will to another a portion of his estate, the latter takes subject to this statutory provision. Such an agreement cannot deprive the widow of her lawful rights. Ward v. Ward, 94 Colo. 275 , 30 P.2d 853 (1934).

If there are no children or descendants of any child, the wife becomes the sole heir at law. Anderson v. Groesbeck, 26 Colo. 3 , 55 P. 1086 (1899).

Widow entitled to relief from fraud of husband. When the transaction by which the husband disposed of his property, real and personal, was colorable merely, and resorted to by him for the purpose of defeating his wife's right as heir, but with intent to reserve the benefit of the property to himself for life, it is a fraud upon the rights of his wife, from which she may be relieved after his death. Smith v. Smith, 22 Colo. 480 , 46 P. 128 (1896).

Applied in In re Arrington, 618 P.2d 744 (Colo. App. 1980); In re Estate of Daigle, 634 P.2d 71 (Colo. 1981).