2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 1 - Intestate Succession
§ 15-11-109. Advancements

1. If an individual dies intestate as to all or a portion of his or her estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement, or (ii) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
2. For the purposes of subsection (1) of this section, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.
3. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.
4. An heir who has received from the intestate estate more than his or her share shall in no case be required to refund, except as otherwise provided by section 15-11-203.

History. Source: L. 94: Entire part R&RE, p. 979, § 3, effective July 1, 1995.

This section is similar to former § 15-11-110 as it existed prior to 1995.

Annotator's note. Since § 15-11-109 is similar to repealed CSA, C. 176, § 5, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Definition of advancement. “In its strict technical sense an advancement is a perfect and irrevocable gift, not required by law, made by a parent, during his lifetime, to his child, with the intention on the part of the donor that such gift shall represent a part of the whole of the portion of the donor's estate that the donee would be entitled to on the death of the donor intestate.” 1 R.C.L., p. 653. Page v. Elwell, 81 Colo. 73 , 253 P. 1059 (1927); Albers v. Young, 119 Colo. 37 , 199 P.2d 890 (1948).

Expenditures incurred in the discharge of the ordinary parental duties will not be considered advancements to the child. Albers v. Young, 119 Colo. 37 , 199 P.2d 890 (1948).

Where the decedent retained control of, and dominion over, an account, including the absolute right to withdraw all or any part of the funds at any time, an advancement will not be created. Albers v. Young, 119 Colo. 37 , 199 P.2d 890 (1948).

Presumption that substantial remittance is an advancement. In the absence of a contrary intent, the presumption arises that the remittance of a substantial amount to a child by his father is intended as an advancement to be taken into account upon the final distribution of the father's estate, if he dies intestate. This presumption is rebuttable as the intent is controlling. Page v. Elwell, 81 Colo. 73 , 253 P. 1059 (1927).

Such intent is determined as of the time each remittance is made. The intention of a parent in making remittances to a child, as to whether the same are to be considered gifts or advancements, is to be determined as of the very time each remittance is made. Page v. Elwell, 81 Colo. 73 , 253 P. 1059 (1927).