Colorado law affords surviving spouses important rights and benefits. In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.
What if a Spouse Dies Without a Will?
- INTESTATE. When an individual dies without a will, intestate succession law will govern. Colorado law will determine how a decedent’s estate will be distributed. This is referred to as Intestate Administration.
- INTESTATE SHARE. If a spouse dies without a Will, the surviving spouse receives an intestate share.
- ENTIRE ESTATE – The surviving spouse is entitled to the decedent’s entire intestate estate if there is no descendant or parent of the descendant that survives the decedent, or if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent. See Rev. Stat. § 15-11-102(1).
- $300,000 plus ¾ of the balance – The surviving spouse is entitled to the first three hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent. See Rev. Stat. § 15-11-102(2).
- $225,000 plus ½ of the balance – The surviving spouse is entitled to the first two hundred twenty-five thousand dollars, plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent. See Rev. Stat. § 15-11-102(3).
- $150,000 plus ½ of the balance – The surviving spouse is entitled to the first one hundred fifty thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse. See Rev. Stat. § 15-11-102(4).
Elective Share or Election Against a Will
A surviving spouse has the right to an elective share and to take against the will. The surviving spouse may elect to take an elective share equal to one-half (50%) of the value of the marital property portion of the augmented estate. Colo. Rev. Stat. § 15-11-202(1). The “augmented estate” includes the total value of the decedent’s probate estate. It also includes certain non-probate transfers to others. The augmented estate, however, does not include funeral expenses and administrative costs. Please note, that the surviving spouse’s elective share will vary based on the length of the marriage prior to the decedent’s death. The elective share of one-half will apply to the following share of the augmented estate, calculated as follows:
|Length of the Marriage||Elective Share|
|Less than 1 year||Supplemental amount only.|
|1 year but less than 2 years||10%|
|2 years but less than 3 years||20%|
|3 years but less than 4 years||30%|
|4 years but less than 5 years||40%|
|5 years but less than 6 years||50%|
|6 years but less than 7 years||60%|
|7 years but less than 8 years||70%|
|8 years but less than 9 years||80%|
|9 years but less than 10 years||90%|
|10 years or more||100%|
ELECTION: The surviving spouse must file the election for the elective share with the Court or deliver it to the executor by the later of nine (9) months after the decedent’s death or within six (6) months after the will was admitted to probate. Colo. Rev. Stat. § 15-11-211.
If an individual makes a will and then marries someone who is not provided for the will. Under Colorado law, the surviving spouse not provided for in the will is entitled to receive no less than what the spouse would have received had the decedent died intestate, unless the will clearly provide to the contrary. See Colo. Rev. Stat. § 15-11-301.
Other Spousal Rights
- Family Allowance – The surviving spouse may assert a claim against the decedent’s estate for a “family allowance.” The family allowance is defined as a reasonable allowance in money out of the estate for the surviving spouse’s maintenance during the period of administration. This allowance may not continue for longer than one year of the estate is unable to discharge allowed claims. The family allowance is exempt from and has priority over most other claims. See Rev. Stat. § 15-11-404.
- Exempt Property – The surviving spouse is entitled to exempt property from the estate of up to $26,000. See Rev. Stat. § 15-11-403.
- Homestead – Although Colorado, like several other states, recognizes a homestead exemption for a surviving spouse, the homestead exemption is not treated as an allowance for the surviving spouse or minor children. See Rev. Stat. §§ 15-11-402, and 38-41-204.
Regardless of what the will says, a surviving spouse in Colorado is entitled to share in his or her deceased spouse’s estate. Consultation with a Colorado lawyer is recommended for spouses in need of advice regarding their rights.