2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 2 - Elective-Share of Surviving Spouse
§ 15-11-201. Definitions

1. “Bona fide purchaser” means a purchaser for value in good faith and without notice of an adverse claim. The notation of a state documentary fee on a recorded instrument pursuant to section 39-13-103, C.R.S., is prima facie evidence that the transfer described therein was made to a bona fide purchaser.
2. “Decedent's nonprobate transfers to others” means amounts that are included in the augmented estate under section 15-11-205.
3. “Fractional interest in property held in joint tenancy with the right of survivorship”, whether the fractional interest is unilaterally severable or not, and if the interests are equal, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants. If the interests are unequal, “fractional interest in property held in joint tenancy with the right of survivorship” means the decedent's interest immediately preceding the decedent's death.
4. “Marriage”, as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse.
5. “Nonadverse party” means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that he or she possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.
6. “Power” or “power of appointment” includes a power to designate the beneficiary of a beneficiary designation, including beneficiary designations under individual retirement accounts and annuities described in section 408 of the federal “Internal Revenue Code of 1986”, as amended, as well as other pension plans or arrangements not subject to part 2 (section 201 et seq.) of the federal “Employee Retirement Income Security Act of 1974”, as amended (29 U.S.C. sec. 1051 et seq.).
7. “Presently exercisable general power of appointment” means a power of appointment under which, at the time in question, the decedent, whether or not he or she then had the capacity to exercise the power, held a power to create a present or future interest in himself or herself, his or her creditors, his or her estate, or the creditors of his or her estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.
8. “Property” includes values subject to a beneficiary designation.
9. “Right to income” includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.
10. “Transfer”, as it relates to a transfer by or on behalf of the decedent, includes:
    1. An exercise or release of a presently exercisable general power of appointment held by the decedent;
    2. A lapse at death of a presently exercisable general power of appointment held by the decedent; and
    3. An exercise, release, or lapse of a presently exercisable general power of appointment that the decedent created in himself or herself and of a power described in section 15-11-205 (2)(b) that the decedent conferred on a nonadverse party.

11. “Value”, unless otherwise indicated, means fair market value as of the decedent's date of death.

History. Source: L. 2014: Entire part R&RE,(HB 14-1322), ch. 296, p. 1220, § 2, effective August 6.

This section is similar to former § 15-11-202 (1) as it existed prior to 2014.

For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101 .

COMMENT

Pre-1990 Provision. The pre-1990 provisions granted the surviving spouse a one-third share of the augmented estate. The one-third fraction was largely a carry over from common-law dower, under which a surviving widow had a one-third interest for life in her deceased husband's land.

Purpose and Scope of Revisions. The revision of this section is the first step in the overall plan of implementing a partnership or marital-sharing theory of marriage, with a support theory back-up.

Historical Note. This Comment was revised in 2008.