Full question:
I live in South Park, Colorado. My husband and I had been married for 12 years. My husband recently passed away and had left a will. However, he had not updated his will and had left most of his estate to his parents. Can I choose not to follow my husband’s will and divide up his estate in any other legal way?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Colorado
Answer:
Spouses at death, usually leave money and property to their surviving spouse through a formal document call. Further, a will may not be the final word regarding the decedent's estate and in many states, the surviving spouse may choose an alternative called the right of election whereby the surviving spouse can elect to take an amount specified in the state statute instead of receiving the amount specified in the will. In Colorado, a surviving spouse’s right to elective share is contained in Colo. Rev. Stat. § 15-11-202(1):(1) Elective-share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part 2, to take an elective-share amount equal to fifty percent of the value of the marital property portion of the augmented estate.
(2)(a) Supplemental elective-share amount. If the sum of the amounts described in sections 15-11-207, 15-11-209(1)(a), and that part of the elective-share amount payable from the decedent's net probate estate and nonprobate transfers to others under section 15-11-209(3)(a) and (3)(b) is less than fifty thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to fifty thousand dollars, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's net probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in section 15-11-209(3)(a) and (3)(b).
(b) The court shall increase or decrease the dollar amount stated in paragraph (a) of this subsection (2) based on the cost of living adjustment as calculated and specified in section 15-10-112.
(3) Effect of election on statutory benefits. If the right of election is exercised by or on behalf of the surviving spouse, the exempt property and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.
(4) Nondomiciliary. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective-share in property in this state is governed by the law of the decedent's domicile at death.
In Colorado, the surviving spouse may elect to take an elective share equal to one-half (of the value of the marital property portion of the augmented estate. However, surviving spouse’s elective share will vary based on the length of the marriage prior to the decedent’s death. If the length of marriage is 10 years or more, the surviving spouse is entitled to the 100 percent of the elective share. However, receipt of the elective share is not automatic and the surviving spouse must challenge the will and assert his or her rights within nine months after the decedent’s death, or within six months after the decedent’s will is admitted to probate, whichever comes later.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
