What is the elective share of the surviving spouse in Colorado?

Full question:

My wife made no will and died last week due to cancer. It was a sudden death or else she had plans of making a will. However, she always wanted me to have her entire estate post her death. We have no kids. As she could make a will in this regard, is there a way I get to keep all her estate?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Colorado

Answer:

Yes, according to the law you are get to keep the whole estate of your wife, as there are no kids in this case. Had there been any surviving children who belonged only to your wife then you wouldn’t have got the whole estate.
However, if any parent of your wife is alive then you will be entitled to get first three hundred thousand dollars, plus three-fourths of any balance of your wife’s estate (which has not been disposed of by a will.)
 
Here is the relevant law. Have a look at it for more details.
 
C.R.S. 15-11-102:
Share of spouse
The various possible circumstances describing the decedent, his or her surviving spouse, and their surviving descendants, if any, are set forth in this section to be utilized in determining the intestate share of the decedent's surviving spouse. If more than one circumstance is applicable, the circumstance that produces the largest share for the surviving spouse shall be applied. The intestate share of a decedent's surviving spouse is:
(1) The entire intestate estate if:
(a) No descendant or parent of the decedent survives the decedent; or
(b) 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;
(2) 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;
(3) 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;
(4) 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.
(5) (Deleted by amendment, L. 2009, (HB 09-1287), ch. 310, p. 1671, § 3, effective July 1, 2010.)
(6) The dollar amounts stated in this section shall be increased or decreased based on the cost of living adjustment as calculated and specified in section 15-10-112.
 
C.R.S. 15-11-202:
Elective-share
(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.
 
C.R.S. 15-11-203 :
Composition of the marital-property portion of the augmented estate
(1) Subject to section 15-11-208, the value of the augmented estate, to the extent provided in sections 15-11-204, 15-11-205, 15-11-206, and 15-11-207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitutes:
(a) The decedent's net probate estate;
(b) The decedent's nonprobate transfers to others;
(c) The decedent's nonprobate transfers to the surviving spouse; and
(d) The surviving spouse's property and nonprobate transfers to others.
(2) The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection (1) of this section multiplied by the following percentage:
If the decedent and the spouse
The percentage is:
were married to each other:
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%