2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 8 - General Provisions Concerning Probate and Nonprobate Transfers
§ 15-11-804. Revocation of Probate and Nonprobate Transfers by Divorce; No Revocation by Other Changes of Circumstances

1. Definitions. As used in this section, unless the context otherwise requires:
   1. “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
   2. “Divorce or annulment” means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of section 15-11-802. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
   3. “Divorced individual” includes an individual whose marriage has been annulled.
   4. “Governing instrument” refers to a governing instrument executed by the divorced individual before the divorce or annulment of his or her marriage to his or her former spouse.
   5. “Relative of the divorced individual's former spouse” means an individual who is related to the divorced individual's former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.
   6. “Revocable” with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of his or her former spouse or former spouse's relative, whether or not the divorced individual was then empowered to designate himself or herself in place of his or her former spouse or in place of his or her former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power.

2. Revocation upon divorce. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
   1. Revokes any revocable (i) disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse, and (iii) nomination in a governing instrument nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and
   2. Severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the former spouses into tenancies in common.

3. Effect of severance. A severance under paragraph (b) of subsection (2) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
4. Effect of revocation. Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.
5. Revival if divorce nullified. Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.
6. No revocation for other change of circumstances. No change of circumstances other than as described in this section and in section 15-11-803 effects a revocation.
7. Protection of payers and other third parties.
   1. A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payer or other third party has received written notice as described in paragraph (b) of this subsection (7). A payer or other third party shall have no duty or obligation to inquire as to the continued marital relationship between the decedent and such beneficiary or to seek any evidence with respect to any such marital relationship. A payer or other third party is only liable for actions taken two or more business days after the payer or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (7) shall not be sufficient to impose liability on a payer or other third party for actions taken pursuant to the governing instrument.
   2. The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a divorce, annulment, or remarriage of the decedent and the designated beneficiary occurred. The written notice shall be mailed to the payer's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payer or other third party in the same manner as a summons in a civil action.
   3. Upon receipt of the written notice described in paragraph (b) of this subsection (7), a payer or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payer or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payer or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payer or other third party discharges the payer or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court.
   4. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court.
   5. Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section.

8. Protection of bona fide purchasers; personal liability of recipient.
   1. A person who purchases property from a former spouse, relative of a former spouse, or any other person for value and without notice, or who receives from a former spouse, relative of a former spouse, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a former spouse, relative of a former spouse, or other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
   2. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a former spouse, relative of the former spouse, or any other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

History. Source: L. 94: Entire part R&RE, p. 1031, § 3, effective July 1, 1995. L. 95: (2)(a) amended, p. 361, § 14, effective July 1.

Law reviews. For article, “Divorce Considerations Relevant to an Estate Planning Practice”, see 29 Colo. Law. 53 (Feb. 2000). For article, “Divorce and the Effects of CRS § 15-11-804 on Estate Planning Documents”, see 34 Colo. Law. 93 (Jan. 2005). For article, “Reformation: From Here to Uncertainty”, see 44 Colo. Law. 59 (Sept. 2015).

Revocation of life insurance policy upon divorce does not violate the prohibition against retrospective legislation, when statute is enacted after divorce, but before the death of a spouse. Subsection (2) is not retrospective with regard to beneficiaries' and decedents' interests. In re Estate of Becker, 32 P.3d 557 (Colo. App. 2000), aff'd sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002).

Subsection (2) is procedural because it relates only to a mode of procedure to enforce the right of each decedent to designate a beneficiary. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002).

Subsection (2) does not violate the contract clause of either the Colorado or United States Constitution. This subsection addresses the donative aspect of an insurance contract, and does not impair contracts between decedents and insurance companies. Subsection (2) merely creates a default rule by changing the identity of the presumptive beneficiary, and does not impact any contractual obligations. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002).

Real property that was divided in separation agreement and in control of husband did not become former wife's property by virtue of a joint tenancy right of survivorship after former husband's death due to former wife's failure to execute deed or otherwise transfer her interest in the property to him; instead, decree of dissolution severed former wife's interest in the property. Camack v. Camack, 62 P.3d 1097 (Colo. App. 2002).

Subsection (7)(c) is in direct conflict with the federal Employee Retirement Income Security Act of 1974 (ERISA) and is thus preempted (citing Boggs v. Boggs, 520 U.S. 833, 117 S. Ct. 1754, 138 L. Ed. 2d 45 (1997)). The relevant “act or omission”--the death of the maker of the annuity contracts--occurred after the effective date of ERISA and the application of federal common law is not appropriate. In re Estate of MacAnally, 20 P.3d 1197 (Colo. App. 2000).

Subsection (2) does not foreclose a former spouse from bringing a reformation claim pursuant to § 15-11-806 . In re Estate of Little, 2018 COA 169 , 433 P.3d 172.

General assembly did not intend for subsection (5) to be the exclusive remedy available to a former spouse. Former spouse may also seek reformation of will pursuant to § 15-11-806 . In re Estate of Little, 2018 COA 169 , 433 P.3d 172.

Section applies even though policy language required written notification by the insured for any modification of the insurance contract. In re Estate of Johnson, 2012 COA 209 , 304 P.3d 614.