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What is a Colorado spouse’s elective share?

Colorado law provides that when a surviving spouse is disinherited by or receives little under the terms of their deceased spouse’s will, the survivor has the right to take an elective share of the estate instead of what the will provides. Basically, and from a public policy standpoint, the spouse’s elective share is a legal vehicle to provide support for a spouse whose deceased spouse left them little or nothing.

If the surviving spouse lacks the mental capacity to do so, that person’s guardian, conservator or agent under a power of attorney may make the election on behalf of the spouse.

The Colorado elective share statute applies when the deceased spouse died while domiciled in Colorado. (Domicile refers to the place a person intends to make their principal residence.) If the deceased spouse died while a domiciliary of a different state, the surviving spouse’s elective share rights are governed by the “law of the decedent’s domicile at death.”

It is important to remember that the surviving spouse could have waived or modified their right to take the elective share in a valid premarital or postmarital agreement, but the validity of that waiver or modification is determined by the law in force on the date of the agreement.

How does Colorado law define the elective share?

The Colorado elective share statute gives the surviving spouse the right to elect to take an “amount equal to fifty percent of the value of the marital-property portion of the augmented estate” instead of the amount left to them in their deceased spouse’s will.

Colorado statutes that impact the calculation of the augmented estate are complicated, but broadly it consists of the deceased spouse’s net probate estate plus certain property transfers by the decedent outside of probate, including to the surviving spouse, as well as the surviving spouse’s property and “nonprobate transfers to others.”

Generally, the longer the marriage, the larger the elective share. The “marital-property portion” of the augmented estate is the total of these four components multiplied by a percentage tied to the length of the marriage. The percentages increase each year up to 10 years of marriage, when the marital-property portion equals 100% of the augmented estate. For example, for a marriage of at least two years but less than three years, the marital-property portion is 20%.

Court process

If a surviving spouse wants to request the elective share, they have a short time (nine months from the decedent’s death or within six months of the probate of the will, whichever is later), subject to court-granted extensions, to file a petition with the court and the personal representative.

Because the augmented estate can include amounts either spouse transferred to others, it is possible that those third parties may have to return some of those assets to constitute the elective share. The surviving spouse must also provide written notice of any hearing on the matter to people interested in the estate and to recipients of property included in the augmented estate who may have to return assets to satisfy the elective share.

Any surviving spouse, heir or beneficiary, third party impacted by the augmented estate or personal representative facing a legal issue related to the spousal elective share should get legal advice from an experienced Colorado probate lawyer as soon as possible to understand the potential ramifications and options for proceeding.


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