2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 2 - Elective-Share of Surviving Spouse
§ 15-11-202. Elective-Share

1. Elective-share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part 2, to take an elective-share amount equal to fifty percent of the value of the marital-property portion of the augmented estate.
2. 1. Supplemental elective-share amount. If the sum of the amounts described in sections 15-11-207, 15-11-209 (1)(a), and that part of the elective-share amount payable from the decedent's net probate estate and nonprobate transfers to others under section 15-11-209 (3)(a) and (3)(b) is less than fifty thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to fifty thousand dollars, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's net probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in section 15-11-209 (3)(a) and (3)(b).
   2. The court shall increase or decrease the dollar amount stated in paragraph (a) of this subsection (2) based on the cost of living adjustment as calculated and specified in section 15-10-112.

3. Effect of election on statutory benefits. If the right of election is exercised by or on behalf of the surviving spouse, the exempt property and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.
4. Nondomiciliary. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective-share in property in this state is governed by the law of the decedent's domicile at death.

History. Source: L. 2014: Entire part R&RE,(HB 14-1322), ch. 296, p. 1222, § 2, effective August 6.

This section is similar to former § 15-11-201 as it existed prior to 2014.

Subsection (b). Subsection (b) implements the support theory of the elective share by providing a $75,000 supplemental elective-share amount, in case the surviving spouse's assets and other entitlements are below this figure.

2008 Cost-of-Living Adjustments. As originally promulgated in 1990, the dollar amount in subsection (b) was $50,000. To adjust for inflation, this amount was increased in 2008 to $75,000. The dollar amount in this subsection is subject to annual cost-of-living adjustments under Section 1-109.

Subsection (c). The homestead, exempt property, and family allowances provided by Article II, Part 4, are not charged to the electing spouse as a part of the elective share. Consequently, these allowances may be distributed from the probate estate without reference to whether an elective share right is asserted.

Historical Note. This Comment was revised in 2008.

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

In contrast to the Uniform Probate Code provisions concerning the augmented estate, which do not allow the surviving spouse to opt out of his beneficial interest in a trust established by the decedent, and which describe their second purpose as to prevent the surviving spouse from electing a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent through other means, the sole purpose of the Colorado provisions is to protect the surviving spouse. Matter of Estate of Grasseschi, 776 P.2d 1136 (Colo. App. 1989), cert. denied, 785 P.2d 1253 (Colo. 1989).

Widow is entitled to statutory allowance even though mutual wills are executed. Where a husband leaves a will, his widow is entitled to the statutory widow's allowance regardless of whether she intends to take under the statute or the will, and the fact that the husband and wife may have executed mutual wills, in itself, in the absence of an effective waiver of the widow's allowance by the wife, in no manner changes the rule. In re Williams, Estate, 101 Colo. 262 , 72 P.2d 476 (1937).

Widow electing to take one-half of estate is entitled to such remaining moiety after discharge of debts. Where under this section a widow renounces the will of her deceased husband, and elects to take one-half of the whole estate of the deceased, she is entitled to such remaining moiety after the discharge of the debts against the estate. Hanna v. Palmer, 6 Colo. 156 , 45 Am. R. 524 (1882).

A surviving spouse married for ten years or more is statutorily entitled to an elective share of half of the augmented estate or the $50,000 supplemental elective share of the estate, whichever is greater. In re Estate of Cloos, 2018 COA 161 , __ P.3d __.

Husband is not entitled to a supplemental elective share of the estate when his share of the marital assets exceeds $50,000. In re Estate of Cloos, 2018 COA 161 , __ P.3d __.

A devise by wife to husband of a life estate in the whole of her property is not the equivalent of one-half thereof. Wolfe v. Mueller, 46 Colo. 335 , 104 P. 487 (1909).

Renouncing where estate is insolvent. Where the widow renounces under this section, giving her in such case one-half of the whole estate, and the estate is solvent, she is entitled to half the rents arising out of land devised under the will to one not an heir at law of the testator. Logan v. Logan, 11 Colo. 44 , 17 P. 99 (1887).

Any election to renounce is contingent upon validity of will. Whether expressed therein or not, any election to renounce a will and take under the statute is contingent upon the establishment of the ultimate validity of the will. In re Stitzer's Estate, 103 Colo. 529 , 87 P.2d 745 (1939).

A widow who renounces all benefits under the will of her deceased husband is entitled to one-half of his estate under the provisions of this section. Hart v. Hart, 95 Colo. 471 , 37 P.2d 754 (1934).

Right of a surviving spouse applies to property of which the husband dies seized and possessed. Hageman v. First Nat'l Bank, 32 Colo. App. 406, 514 P.2d 328 (1973).

If by a will the husband attempts to dispose of his property in a manner adverse to the interest of the wife, she has the right to elect to take against the will and receive one-half of the husband's estate. Hageman v. First Nat'l Bank, 32 Colo. App. 406, 514 P.2d 328 (1973).

Property transferred to inter vivos trust. Where the settlor, in creating an inter vivos trust, transferred title to property owned by him, and his interest therein passed immediately to the trustee and a valid trust was established, the rights retained by the settlor in the trust did not defeat the trust nor the resulting exclusion of the trust property from the settlor's probate estate, and the transferred property was not subject to the surviving spouse's elective share. Hageman v. First Nat'l Bank, 32 Colo. App. 406, 514 P.2d 328 (1973).

Election of the surviving spouse to one-half of the augmented estate was disallowed insofar as it would affect assets transferred to a revocable inter vivos trust prior to July 1, 1974, the effective date of the Colorado probate code. In re Estate of Novitt, 37 Colo. App. 524, 549 P.2d 805 (1976).

This section is not limited to cases in which Colorado is the domiciliary state. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

Election in case of ancillary administration. Nothing in this section expressly requires, in the case of an ancillary administration, that a valid election against the will be filed in the domiciliary state. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

Rule that prohibits taking against the will and receiving benefits under the will is based upon the doctrine of equitable estoppel and is designed to prevent a surviving spouse from taking unfair advantage of the multijurisdictional distribution of an estate. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

Rule precludes election in ancillary administration inconsistent with election in domiciliary estate. The rule that prohibits taking against the will and receiving benefits under the will at the same time precludes an election by the surviving spouse in an ancillary administration that is inconsistent with an election already taken in the domiciliary estate. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

Assertion of a contrary election is an affirmative defense that must be pleaded and proved by the party asserting the estoppel. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

Section fixes the value of the property comprising an augmented estate on the decedent's date of death. Beren v. Beren, 2015 CO 29, 349 P.3d 233.

Section controls over the general equitable authority that the probate court may exercise under § 15-10-103 . Beren v. Beren, 2015 CO 29, 349 P.3d 233.

Probate court erred in making an equitable adjustment to beneficiary's elective share to compensate for an appreciation in the value of the estate between death and distribution. Code protects beneficiary from any decreases in value and the corollary to that is that a beneficiary should not be able to benefit from any increases in value. In re Estate of Beren, 2012 COA 203 , 412 P.3d 487, aff'd in part and rev'd in part on other grounds, 2015 CO 29, 349 P.3d 233.

Probate court did not err when considering the terms of wife's second marital agreement in denying petition for spouse's elective share. Wife and husband had three marital agreements, and none of the agreements contained a merger or integration clause. Therefore, the second marital agreement was not rendered void by the third marital agreement. In re Estate of Gadash, 2017 COA 54 , 413 P.3d 272.

Applied in Lopata v. Metzel, 641 P.2d 952 (Colo. 1982); In re Estate of Smith, 674 P.2d 972 (Colo. App. 1983).