2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 1 - Intestate Succession
§ 15-11-104. Requirement of Survival by One Hundred Twenty Hours - Individual Gestation

1. For purposes of intestate succession and exempt property, and except as otherwise provided in paragraph (b) of this subsection (1), the following rules apply:
   1. An individual born before a decedent's death who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period.
   2. An individual in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.

2. This section is not to be applied if its application would result in a taking of intestate estate by the state under section 15-11-105.

History. Source: L. 94: Entire part R&RE, p. 978, § 3, effective July 1, 1995. L. 2009: Entire section amended,(HB 09-1287), ch. 310, p. 1673, § 5, effective July 1, 2010.

This section is similar to former § 15-11-104 as it existed prior to 1995.

For requirement that a devisee survive a testator by one hundred twenty hours, see § 15-11-702 . For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101 .

COMMENT

This section avoids multiple administrations and in some instances prevents the property from passing to persons not desired by the decedent. See Halbach & Waggoner, The UPC's New Survivorship and Antilapse Provisions, 55 Alb. L. Rev. 1091, 1094-1099 (1992). The 120-hour period will not delay the administration of a decedent's estate because Sections 3-302 and 3-307 prevent informal issuance of letters for a period of five days from death. Subsection (b) prevents the survivorship requirement from defeating inheritance by the last eligible relative of the intestate who survives for any period.

In the case of a surviving spouse who survives the 120-hour period, the 120-hour requirement of survivorship does not disqualify the spouse's intestate share for the federal estate-tax marital deduction. See Int.Rev.Code § 2056(b)(3).

2008 Revisions. In 2008, this section was reorganized, revised, and combined with former Section 2-108. What was contained in former Section 2-104 now appears as subsections (a)(1) and (b). What was contained in former Section 2-108 now appears as subsection (a)(2). Subsections (a)(1) and (a)(2) now distinguish between an individual who was born before the decedent's death and an individual who was in gestation at the decedent's death. With respect to an individual who was born before the decedent's death, it must be established by clear and convincing evidence that the individual survived the decedent by 120 hours. For a comparable provision applicable to wills and other governing instruments, see Section 2-702. With respect to an individual who was in gestation at the decedent's death, it must be established by clear and convincing evidence that the individual lived for 120 hours after birth.

Historical Note. This Comment was revised in 2008.

Law reviews. For article, “Probate and Non-probate Distribution Issues in the Case of a Murder/Suicide”, see 17 Colo. Law. 1061 (1988).

Applied in In re Estate of Whittman, 220 P.3d 961 (Colo. App. 2009), aff'd, 233 P.3d 697 (Colo. 2010).