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Spouse's Rights


This article provides a broad overview of a surviving spouse’s rights to the estate of a deceased spouse.

Whether spouses are in their first marriage or have had multiple marriages, a surviving spouse has certain rights under Colorado law, unless such rights are effectively waived in a premarital or post-marital agreement. There is, of course, a public policy against disinheriting a spouse, potentially leaving the surviving spouse impoverished to the extent of needing to apply for government for aid. For purposes of this blog, we will assume there is no enforceable marital agreement between spouses.

What if there is no will?

Spouse's Rights

If a married person dies and the deceased has no will (e.g. dies “intestate”), the surviving spouse has the right to an “intestate share” under Colorado law. The intestate share for a surviving spouse will depend upon if the decedent has minor children (whether of the current marriage or from a prior relationship or both), whether the decedent is survived by parents, etc. 

Examples of Intestate Share:

Example 1: The surviving spouse has a right to 100% of the decedent’s probate estate if the decedent has no surviving descendants or parents.

Example 2: The first $263,000 (as of 2020, adjusted annually) plus one-half of the balance of the probate estate will be the intestate share for the surviving spouse if all of the deceased spouse’s descendants are also descendants of the surviving spouse, but the surviving spouse also has other descendants not of the deceased spouse (such as from a prior marriage). The deceased spouse’s descendants in Example 2 receive the remaining one-half balance of the probate estate.

These rules of intestacy are carefully laid out in the Colorado probate laws and are more easily understood by a review of the “Table of Consanguinity” which shows the various degrees of relationship to the decedent. NOTE: The probate estate includes assets which are subject to a probate proceeding. Assets NOT included in a probate estate would be assets which are passed onto individuals by way of a beneficiary designation, such as under a life insurance policy or a “payable on death” designation on a bank account.

Elective Share

A surviving spouse may choose to take an “elective share” under Colorado law.  The elective share is a statutory minimum entitlement of the surviving spouse, whether the deceased spouse died with a will or without a will. If, for example, the deceased spouse died with a will but the will provides a nominal amount for the surviving spouse, the elective share is available to the surviving spouse.

Many years ago, Colorado law provided the surviving spouse the right to elect one-half of the “estate.” Colorado probate laws have been updated several times since 1974 to include what is called the “augmented estate”. The augmented estate can be complicated to compute, but generally, the augmented estate includes the property of the deceased spouse plus the property of the surviving spouse, plus certain transfers of property made prior to the passing of the first spouse, less certain assets, such as real estate owned in joint tenancy with a third party prior to the marriage.  

Elective Share Percentage

Once the augmented estate is computed, it is then multiplied by a percentage determined by the length of the marriage. The elective share percentage for the surviving spouse of a marriage that was 1-year in duration is 10%. The sliding-scale vesting schedule increases by 10% per year of marriage so that when the marriage is 10 years in duration or more, the surviving spouse is entitled to 100% of the marital-property portion of the augmented estate. For example, if the assets of the deceased spouse plus the surviving spouse, plus or minus certain assets listed in the Colorado statutes (i.e., the marital-property portion) is $1,000,000, then the surviving spouse after 1 year of marriage, but less than two years, is entitled to $100,000; the surviving spouse after 2 years of marriage, but less than three years, is entitled to $200,000, etc.  In any event, the surviving spouse is entitled to a statutory minimum amount of $58,000 (in 2020). The surviving spouse has nine months after the spouse dies to petition the probate court for an elective share, or up to six months after the probate of the decedent’s will, whichever limitation later expires.

Surviving Spouse Options

This was a quick overview of rather complex rules regarding the rights of a surviving spouse.  The take-away of this blog should be that there are statutory options for the surviving spouse who has been left very little, or nothing, by the deceased spouse. More importantly, the issues raised in this article can be avoided by working with an experienced estate planning attorney who takes the time to understand your family’s dynamics, overall asset structure, and goals.  Post-death planning through an intestate share or by calculating the elective share (percentage of the augmented estate) can be avoided by executing a well-drafted plan to care for a surviving spouse. There are many more estate planning options prior to death than post death.

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