2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 9 - Special Provisions Relating to Distribution
§ 15-12-902. Distribution - Order in Which Assets Appropriated - Abatement

1. 1. Except as provided in subsection (2) of this section and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
      1. Property not disposed of by the will;
      2. Residuary devises;
      3. General devises;
      4. Specific devises.

   2. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

2. If the will expresses an order of abatement, or the express purpose of the devise would be defeated by the order of abatement stated in subsection (1) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
3. If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

History. Source: L. 73: R&RE, p. 1597, § 1. C.R.S. 1963: § 153-3-902. History. Source: L. 73: R&RE, p. 1597, § 1. C.R.S. 1963: § 153-3-902.

Annotator's note. Since § 15-12-902 is similar to repealed § 152-14-5, CRS 53, CSA, C. 176, § 226, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Effect of widow's taking elective share on other devises. Upon renunciation by the widow under § 15-11-201 , giving her in such case half of the whole estate, the will was not revoked as to a devise to one not an heir at law, but that such a devise abated one half. Logan v. Logan, 11 Colo. 44 , 17 P. 99 (1887).

How interest of widow derived. A will devised to the widow an undivided half of the estate of decedent for life, remainder to a brother and sister and three children and the residue to another. The widow elected to renounce under the will and take under the statute. A judgment declaring void a part of the bequests held objectionable; the interest of the widow should be derived from the entire estate and the interests of the beneficiaries abated proportionally under this section. Binkley v. Switzer, 69 Colo. 176 , 192 P. 500 (1920).

Loss to devisee attributed to this section. Where the widow's half which she has elected to take might encroach upon a part of the devise to the son because the estate property outside of the devise to the son and outside of the legacy to the daughter is not sufficient to pay the widow's half in full, the loss to the son must then be attributed to this section. The courts have no power to repeal the section. Hart v. Hart, 95 Colo. 471 , 37 P.2d 754 (1934).

A general legacy is one which is payable out of the general assets of a testator's estate, such as a gift of money or other thing in quantity, and not in any way separated or distinguished from other things of like kind. Breymaier v. Davidson, 149 Colo. 218 , 368 P.2d 965 (1962).

While a specific legacy is a gift by will of a specific article, or a particular part of the testator's estate, which is identified and distinguished from all others of the same nature, and which is to be satisfied only by the delivery and receipt of the particular thing given. Breymaier v. Davidson, 149 Colo. 218 , 368 P.2d 965 (1962).

A demonstrative legacy partakes of the nature of both a general and specific legacy. It is a gift of money or other property charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fails. Breymaier v. Davidson, 149 Colo. 218 , 368 P.2d 965 (1962).

Therefore, bequests to daughters of sums of money are general legacies, as distinguished from specific legacies, and are subject to abatement under this section as unamended. Breymaier v. Davidson, 149 Colo. 218 , 368 P.2d 965 (1962).

Settlement contract confirming legacy does not exempt it from abatement. A gift of $30,000 to a daughter of the testator to be paid out of the general estate of testator is a general legacy, and a contract made by the parties in settlement of a contest which merely confirmed such legacy cannot be held to exempt it from abatement under this section as unamended. Breymaier v. Davidson, 149 Colo. 218 , 368 P.2d 965 (1962).