Surviving Spouse rights in Colorado include:
- Intestate Rights
- Elective Share
- Family Allowance
- Exempt Property
- Homestead Exemption
Surviving Spouse Rights in Colorado If There Is No Will
When an individual dies without a will, intestate succession law will govern. Colorado law will determine how a decedent’s estate will be distributed. This is referred to as Intestate Administration.
If a spouse dies without a Will, the surviving spouse has rights to an intestate share set forth by Colorado law.
Entire Estate
The surviving spouse is entitled to the decedent’s entire intestate estate if there is no descendant or parent of the descendant that survives the decedent, or if 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. See Rev. Stat. § 15-11-102(1).
Partial Estate
- $356,000 plus ¾ of the balance – The surviving spouse is entitled to 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. See Rev. Stat. § 15-11-102(2).
- $267,000 plus ½ of the balance – The surviving spouse is entitled to 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. See Rev. Stat. § 15-11-102(3).
- $178,000 plus ½ of the balance – The surviving spouse is entitled to 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. See Rev. Stat. § 15-11-102(4).
The foregoing amounts are to be adjusted for cost of living as determined under Colo. Rev. Stat. §15-10-112, and have been updated for 2021.
Elective Share in Colorado or Election Against a Will
Surviving spouse rights in Colorado include the right to an elective share and to take against the will. Read How Do You Make a Valid Will In Colorado? 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.
The surviving spouse’s elective share will vary based on the length of the marriage prior to the decedent’s death. The value of the marital property portion of the augmented estate consists of the values of the augmented estate multiplied by the applicable percentages based on length of marriage. See Colo. Rev. Stat. § 15-11-203.
Length of Marriage | Percentage |
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% |
Deadline for Election
The surviving spouse must file the petition 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.
Pretermitted Spouses
If an individual makes a will and then marries someone who is not provided for in the will, the surviving spouse is called a pretermitted spouse. 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 provides to the contrary. See Colo. Rev. Stat. § 15-11-301.
Other Surviving Spouse Rights Under Colorado Law
- Family Allowance – The surviving spouse has the right to assert a claim against the decedent’s estate for a “family allowance.” The family allowance is defined under Colorado law as a reasonable allowance in money out of the estate for the surviving spouse’s maintenance during the period of administration. This allowance may not continue for longer than one year of the estate is unable to discharge allowed claims. The family allowance is exempt from and has priority over most other claims. See Colo. Rev. Stat. § 15-11-404.
- Exempt Property – The surviving spouse is entitled to exempt property from the estate of up to $35,000. See Colo. Rev. Stat. § 15-11-403.
- Homestead – Although Colorado, like several other states, recognizes a homestead exemption for a surviving spouse, the homestead exemption is not treated as an allowance for the surviving spouse or minor children. See Colo. Rev. Stat. §§ 15-11-402.
