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?
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
|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
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.