When you lose a spouse, navigating legal matters is probably the last thing on your mind. Yet understanding your surviving spouse rights in Colorado can make a significant difference in your financial security and peace of mind during this difficult time.
At Birch Grove Legal, we’ve guided many Colorado families through this challenging process. This guide walks you through the key protections Colorado law provides to surviving spouses, helping you understand what you’re entitled to and how to claim these important rights.
What Happens When There’s No Will (Intestate Succession)
If your spouse passed away without creating a will, Colorado law steps in with specific rules about how their property is distributed. As a surviving spouse, your inheritance depends on your family situation:
When You Inherit Everything
You’ll receive the entire estate if:
- No descendants (children, grandchildren) or parents of your deceased spouse are living
- All surviving descendants are children you share with your deceased spouse, and you don’t have children from other relationships
When You Share the Estate
When other family members survive, the estate is divided according to specific formulas:
| Family Situation | Surviving Spouse’s Share |
|---|---|
| With Parent(s) But No Children | $356,000 plus three-fourths of the remaining balance |
| With Shared Children Only | Entire estate |
| With Shared Children, Plus Your Separate Children | $267,000 plus one-half of the remaining balance |
| With Your Spouse’s Separate Children | $178,000 plus one-half of the remaining balance |
Note: These dollar amounts are adjusted periodically for inflation, with the figures above reflecting 2021 values.
As part of our estate planning services, we help clients understand how these intestate succession rules might affect their families and how proper planning can provide better outcomes.
What Happens to a Will When One Spouse Dies
When a spouse passes away leaving a will, their wishes generally dictate how assets are distributed. However, Colorado law provides important protections that may override certain provisions in a will.
Your Rights Even When There’s a Will: The Elective Share
Even when your spouse left a will, Colorado law protects you from being disinherited through what’s called the “elective share.” This is a crucial protection that ensures you receive a fair portion of your spouse’s estate regardless of what the will says.
How the Elective Share Works
You can claim an elective share equal to 50% of the marital property portion of what’s called the “augmented estate.” The percentage of marital property considered for this elective share increases with the length of your marriage:
| Marriage Duration | Percentage of Marital Property |
|---|---|
| Less than 1 year | Supplemental amount only |
| 1-2 years | 10% |
| 2-3 years | 20% |
| 3-4 years | 30% |
| Each additional year | Adds 10% up to 100% at 10+ years |
This means that after 10 years of marriage, you’re entitled to 50% of the entire marital portion of the augmented estate.
For more details about Colorado’s elective share statute, visit the Colorado State Legislature website.
What’s Included in the “Augmented Estate”?
The augmented estate calculation includes:
- Total value of your spouse’s probate estate
- Certain non-probate transfers to others
- Less funeral expenses and administrative costs
Our probate administration services can help you understand and navigate this complex calculation.
How to Claim Your Elective Share
To claim your elective share, you must file a petition within specific timeframes:
- Nine months after your spouse’s death, or
- Six months after the will is admitted to probate
Supplemental Protection
If the sum of amounts you receive through other means is less than $50,000 (adjusted for inflation), you’re entitled to a supplemental elective share to reach that threshold.
Is a Wife Entitled to Her Husband’s Inheritance if He Dies in Colorado?
Yes, a wife (or any spouse) is entitled to a portion of their deceased spouse’s estate in Colorado, even if the will states otherwise. This is secured through Colorado’s elective share provision, ensuring surviving spouses receive fair treatment regardless of what a will may specify.
Protection for “Omitted Spouses”
Did you marry your spouse after they had already created their will? Colorado’s “omitted spouse” statute may protect you.
Purpose of the Protection
This statute protects against unintentional disinheritance that can happen when someone creates a will before marriage and never updates it afterward. As an omitted spouse, you’re entitled to receive what would have been your intestate share of the estate, minus any portions specifically left to children from previous relationships.
At Birch Grove Legal, we often recommend that clients update their estate plans after major life events like marriage to avoid these complications.
When the Protection May Not Apply
The omitted spouse protection doesn’t apply if:
- The will appears to have been executed in contemplation of your marriage
- The will explicitly states it remains effective despite future marriage
- Your spouse provided for you outside the will with the intent to substitute for a will provision
For example, in the case of In re Estate of King, the Colorado Court of Appeals determined a surviving spouse was not “omitted” because she received $4 million in life insurance proceeds and $410,806 in retirement benefits, plus jointly owned accounts.
Additional Financial Protections
Beyond inheritance rights, Colorado law provides several other important protections:
| Protection Type | Description | Amount/Limit |
|---|---|---|
| Family Allowance | Maintenance during estate administration | Reasonable amount determined by court |
| Exempt Property | Personal items and necessities | Up to $35,000 |
| Homestead Exemption | Protection for your home from certain creditors | Separate protection (not an allowance) |
Is Colorado a Community Property State When a Spouse Dies?
No, Colorado is not traditionally a community property state. It follows equitable distribution principles. However, Colorado has adopted the Uniform Disposition of Community Property Rights at Death Act, which respects community property acquired in another state. This means that when one community property spouse dies, half of their community property belongs to the decedent and half to the surviving spouse.
How Property Transfers to a Surviving Spouse
The way property transfers to you as a surviving spouse often depends on how it was owned:
Property Title Considerations
Property solely in your deceased spouse’s name typically requires probate to transfer to you. However, jointly owned property with right of survivorship passes outside probate directly to you.
This distinction catches many spouses by surprise, especially when they discover their name isn’t on the deed to their home.
At Birch Grove Legal, our estate planning attorneys help clients structure their property ownership to avoid unnecessary complications after a spouse’s death.
Types of Probate in Colorado
| Probate Type | Court Involvement | When Used |
|---|---|---|
| Formal Probate | Maximum | Will is unclear or contested |
| Informal Probate | Minimal | Uncontested estates |
| Small Estate | Simplified process | Estates under $82,000 without real property |
Our probate administration services can guide you through whichever type of probate applies to your situation. Having handled numerous probate cases in Castle Rock and throughout Colorado, we understand how to make this process as smooth as possible.
For more information about Colorado’s probate process, visit the Colorado Judicial Branch website.
Special Considerations
Common Law Marriage
Colorado recognizes common law marriages, granting common law spouses the same inheritance rights as formally married couples. However, proving a common law marriage after death can be challenging, requiring evidence of mutual agreement, cohabitation, and public reputation as spouses.
Our family law services can help if you need assistance establishing a common law marriage for inheritance purposes.
Blended Family Complexities
Rights become particularly complex in blended families. Many couples mistakenly believe all property automatically transfers to the surviving spouse, but without proper estate planning, children from previous relationships may inherit portions of the estate.
This is one of the most common estate planning mistakes in Colorado.
Our attorneys at Birch Grove Legal specialize in blended family estate planning, helping to ensure your wishes are carried out while protecting both your spouse and children from previous relationships.
Practical Guidance for Surviving Spouses
Immediate Steps After Loss
| Step | Details |
|---|---|
| 1. Obtain death certificates | Request multiple certified copies |
| 2. Identify assets | Create inventory of all assets and ownership structure |
| 3. Consult an attorney | Especially important for complex estates |
Potential Pitfalls to Avoid
- Decision Timing: Avoid making major financial decisions during early grief periods
- House Ownership: Understand property title structure before making housing decisions
- Tax Implications: Consider stepped-up basis tax benefits when inheriting property
For more information on estate taxes and benefits, visit the IRS website.
Financial Protection Claiming
When claiming elective share rights:
- Document the length of your marriage precisely
- Identify all assets potentially included in the augmented estate
- Meet filing deadlines to preserve your rights
A Real-World Example from Castle Rock
Sarah and John had been married for 15 years in Castle Rock when John passed away unexpectedly. John had two adult children from a previous marriage and had never updated his will after marrying Sarah. His will left most of his estate to his children.
Because Colorado law protects surviving spouses, Sarah was able to claim her elective share. Since they had been married for over 10 years, she was entitled to 50% of the marital property portion of the augmented estate. This provided her with financial security while still allowing John’s children to receive an inheritance.
At Birch Grove Legal, we’ve helped many surviving spouses like Sarah understand and claim their rights while navigating the emotional challenges of losing a loved one.
People Also Asked
Can a spouse be completely disinherited in Colorado?
No, Colorado law protects surviving spouses from complete disinheritance through the elective share statute. Even if a will leaves nothing to a spouse, they can claim their elective share of the estate, which can be up to 50% of the marital property portion of the augmented estate depending on the length of the marriage. This protection exists specifically to prevent spousal disinheritance.
Does a surviving spouse automatically inherit the house in Colorado?
Not necessarily. How a house transfers depends on how it was titled. If the home was jointly owned with right of survivorship, it passes automatically to the surviving spouse outside of probate. However, if the house was solely in the deceased spouse’s name, it becomes part of their estate and is distributed according to their will or intestate succession laws. For homes held as tenants in common, only the deceased’s portion is subject to probate.
How long does a spouse have to file for an elective share in Colorado?
A surviving spouse must file a petition for the elective share within nine months after the date of death, or within six months after the will is admitted to probate, whichever is later. Missing this deadline typically means forfeiting the right to claim the elective share.
What rights do common law spouses have in Colorado after death?
Common law spouses in Colorado have the same inheritance rights as legally married spouses, including intestate succession rights and the right to claim an elective share. The challenge, however, is proving the common law marriage existed, which requires evidence of mutual agreement to be married, cohabitation, and public reputation as a married couple.
Can a prenuptial agreement override a spouse’s inheritance rights in Colorado?
Yes, a valid prenuptial agreement can override a spouse’s statutory inheritance rights, including the right to an elective share. For the prenuptial agreement to be enforceable, it must be in writing, entered into voluntarily, include full financial disclosure, and not be unconscionable at the time of enforcement. An experienced estate planning attorney should draft these agreements to ensure they meet all legal requirements.
How are retirement accounts and life insurance handled for surviving spouses?
Retirement accounts and life insurance policies typically pass to the named beneficiary regardless of what a will states. If the surviving spouse is named as the beneficiary, they receive these assets directly, outside of probate. If someone else is named as beneficiary, the spouse generally has no claim to these assets unless they can prove the beneficiary designation was made improperly or through undue influence.
What happens to jointly owned property when a spouse dies in Colorado?
Jointly owned property with right of survivorship automatically passes to the surviving joint owner(s) upon death, regardless of what the will says. This includes property held as joint tenants with right of survivorship and property held in tenancy by the entirety (available only to married couples). This transfer happens outside the probate process and is one of the simplest ways property passes to a surviving spouse.
How do I contest a will that disinherits me as a spouse in Colorado?
As a surviving spouse in Colorado, you have several options if you believe you’ve been unfairly disinherited. You can: 1) Claim your elective share instead of taking under the will; 2) Challenge the will’s validity based on grounds such as undue influence, fraud, or lack of testamentary capacity; or 3) Assert your rights as an omitted spouse if the will was created before your marriage. Each approach has different requirements and timeframes, so consulting with a probate attorney promptly is essential.
Conclusion
Colorado law provides robust protections for surviving spouses through intestate succession rights, elective share provisions, omitted spouse statutes, and various allowances. These protections balance the deceased’s wishes with the public policy interest in preventing spousal impoverishment.
However, these protections function best when complemented by comprehensive estate planning. Couples should regularly review and update their estate plans, particularly after major life events like remarriage or blended family formation, to ensure their wishes align with legal outcomes.
Understanding these rights helps you navigate the complex legal landscape during an emotionally challenging time, securing the financial protections the law intends to provide.
This article provides general information about surviving spouse rights in Colorado and should not be construed as legal advice. For guidance on your specific situation, please consult with a qualified attorney at Birch Grove Legal.
How Birch Grove Legal Can Help
At Birch Grove Legal, we understand that dealing with legal matters after losing a spouse can feel overwhelming. Our compassionate approach combines legal expertise with genuine care for your wellbeing during this difficult time.
Serving Castle Rock and the surrounding areas, our attorneys provide personalized guidance for surviving spouses who need help understanding and claiming their rights under Colorado law. We can assist with:
- Filing for elective share rights
- Navigating the probate process
- Addressing blended family inheritance concerns
- Resolving property transfer issues
- Updating your own estate plan after losing your spouse
Contact us for a consultation to discuss your specific situation. We’re here to provide the clear guidance and support you need.
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