Chayet & Danzo, LLC Chayet & Danzo, LLC
Call for a Free Initial Consultation
Direct 303-872-5980
Toll-Free 888-472-1088
Email Us
Compassion, talent and dedication: guiding colorado families and Their Trusted Advisors During Times of Need

Colorado court analyzes omitted spouse share statute

Colorado probate law provides a legal remedy for a surviving spouse when the other spouse dies with a will executed before the marriage that does not provide for the surviving spouse. In May, the Colorado Court of Appeals decided that a surviving spouse was not eligible to take an omitted spouse share of her deceased husband’s estate because he had named her the beneficiary of $4 million in life insurance proceeds and $410,806 in retirement benefits. They also had owned $52,000 in money accounts jointly.

Purpose of omitted spouse statute

The omitted spouse statute is meant to protect a spouse unintentionally disinherited because their spouse had a premarital will that did take into account the later marriage. In this situation, a surviving spouse can take their intestate share (amount that would be left to a spouse if there was no will under state law) of the estate after bequests or trusts for the benefit of children or grandchildren of the deceased from another relationship are subtracted.

In the case of In re Estate of King, the appeals court agreed with the lower court that the surviving wife of a 10-month marriage could not take the omitted spouse share because she was not unintentionally disinherited.


The statute provides that if any of three exceptions apply, the spouse is not omitted and may not take the omitted share:

  • The will appears to have been executed while contemplating marriage to the surviving spouse.
  • The will says it is to remain in effect even if the testator (the person who made the will) later marries.
  • The testator provided for the surviving spouse outside of the will and the deceased spouse intended that the non-will transfer take the place of a devise in the will or you could reasonably infer this intention based on the amount of the transfer or from other evidence.

In the King case, the third exception was found to apply. Because no Colorado case had analyzed this issue, the appeals court looked at other states’ courts that had the same or similar law and had done so.

Relevant factors

The Colorado court adopted (and tweaked) eight factors the Utah Supreme Court had found relevant:

  • A will’s beneficiaries
  • Dollar amount of any bequest to the surviving spouse under the will
  • Percentage of the estate that bequest equals, although if the dollar amount is substantial, this could be less relevant
  • Comparable gifts to other beneficiaries
  • Time between will signing and marriage
  • Marriage length
  • Gifts to a surviving spouse during the decedent’s life, either in contemplation of marriage or otherwise such as in friendship
  • Separate property of a surviving spouse and their needs

In the King marriage, the court found it important that the husband had designated his future wife the beneficiary of $4 million in life insurance proceeds shortly before the wedding and had ratified this during the marriage by informing the insurer of the wife’s married name for the beneficiary designation. This significant gift was indirect evidence of his intention to provide for her outside the will.

No Comments

Leave a comment
Comment Information

Watch Our Firm Video

We are the premier Elder Law firm in the Colorado region. We set ourselves apart from other law firms in the area with our talent, dedication, compassion and ability of our attorneys to handle any case in Elder Law. We serve Colorado families with experience and dignity in your time of need.

View More Videos

Denver Office
650 S.Cherry St., Suite 710
Denver, CO 80246

Toll Free: 1-888-472-1088
Phone: 303-872-5980
Fax: 303-355-8501
Denver Law Office Map

Edwards Office
105 Edwards Village Blvd.
Edwards, CO 81632

Toll Free: 888-472-1088
Toll Free: 1-888-472-1088
Fax: 303-355-8501
Edwards Law Office Map

Aspen Office
600 East Hopkins Avenue
Suite 301
Aspen, CO 81611

Toll Free: 888-472-1088
Toll Free: 1-888-472-1088
Fax: 303-355-8501
Aspen Law Office Map

  • Rated by Super Lawyers Macro Chayet
  • Rated by Super Lawyers Frank J. Danzo, III
  • Member National Academy of Elder Law Attorneys, Inc. TM
  • Avvo Rating 10.0 Superb Top Attorney Elder Law
  • 2015 Five Star Professional Wealth Manager Multi-Year Winner
  • Our new 2015 Medicaid Book: how to protect your Family's Assets from devastating nursing home costs
  • Proud Sponsor 2015-Denver Colorado Senior Law Day
  • Peer Review Rated For Ethical standards & Legal Ability TM Martindale Hubbell
  • Haystack