2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 2 - Elective-Share of Surviving Spouse
§ 15-11-212. Right of Election Personal to Surviving Spouse - Incapacitated Surviving Spouse

1. Surviving spouse must be living at time of election. The right of election may be exercised only by a surviving spouse who is living when the petition for the elective-share is filed in the court under section 15-11-211. If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by his or her conservator, guardian, or agent under the authority of a power of attorney.
2. Incapacitated surviving spouse. If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court must set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others under section 15-11-209 (1) and (3) and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection (2), an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms and such additional terms as the court determines appropriate:
   1. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need;
   2. During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust, but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination; and
   3. Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order:
      1. Under the residuary clause, if any, of the will of the predeceased spouse against whom the elective-share was taken, as if that predeceased spouse died immediately after the surviving spouse; or
      2. To that predeceased spouse's heirs under section 15-11-711.

History. Source: L. 2014: Entire part R&RE,(HB 14-1322), ch. 296, p. 1231, § 2, effective August 6.

This section is similar to former § 15-11-206 as it existed prior to 2014.

Law reviews. For article, “Pre-Nuptial Agreements Revisited”, see 11 Colo. Law. 1882 (1982). For article, “Colorado's New Uniform Premarital and Marital Agreements Act”, see 43 Colo. Law. 57 (March 2014).

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

Creditor has no right to compel husband to renounce will. Neither spouse has any right, vested or inchoate, in the estate of the other. The husband's consent to the wife's testamentary disposition of her property is effective as against his creditors, and this even though such consent was given with the active purpose to defeat the right that, the husband surviving the wife, the creditors might otherwise have to resort to the husband's moiety of the wife's estate. The creditor has no right to compel the husband to take as against the provisions of the will, and no standing to afterwards question the probate of the will or the disposition of the wife's property made thereby. Deutsch v. Rohlfing, 22 Colo. App. 543, 126 P. 1123 (1912).

A surviving husband who dies without making an election not to take under the will is conclusively presumed to have consented to its terms. Gallup v. Rule, 81 Colo. 335 , 255 P. 463 (1927).

A right of election is a personal privilege that does not pass to the heirs. Gallup v. Rule, 81 Colo. 335 , 255 P. 463 (1927).

The court erred in attempting to shield the assets of the trust for the purpose of determining Medicaid eligibility because 15-14-412.6 (2) prohibits any trust that has been “established by an individual that has the effect of qualifying or purports to qualify the trust beneficiary for public assistance,” and that section does not except from this prohibition elective-share trusts created pursuant to this section. In re Estate of Faller, 66 P.3d 114 (Colo. App. 2002).