1976, July, Pg. 943. CPC Newsletter.

5 Colo.Law. 943

Colorado Lawyer

1976.

1976, July, Pg. 943.

CPC Newsletter

943Vol. 5, No. 7, Pg. 943CPC NewsletterOne of the games that some people play is the game of depriving the surviving spouse of as much property as possible. The most effective gambit in this game has been the irrevocable trust, but there are many variations and permutations. Only a few people engage in such games because the great majority of married people are vitally concerned with the care and welfare of the survivor; in fact, the concern for the welfare of the spouse in declining years has been a major factor in the trust business. The concern for a surviving spouse is now a part of Colorado law and older lawyers must familiarize themselves with the complexities of the augmented estate. Younger lawyers can content themselves with the current income tax planning aspects of non-marriage.

For those whose bible is the Colorado Estate Administration blue book, the reference is to the section dealing with "elective share of surviving spouse," §§ 153-2-201 through 153-2-207. For the purist, the reference is to C.R.S. 1973, §§ 15-11-201 through 15-11-207. Has the statute eliminated the possibility of continued game playing with transfers to other than a spouse?.

The Bona Fide PurchaserMy particular focus is on a very narrow problem. Has the concept of a bona fide purchaser for value been eliminated by the language of § 15-11-207(3), which says that an original transferee from the decedent is subject to a contribution to make up an elective share of the surviving spouse? A similar question is posed by use of the word "appointee," because such an appointee may be the only proper recipient of the appointment and the appointed property may not be available for a surviving spouse unless it can be reached under this language.

It is easy to imagine a case under such bold language where a bona fide purchaser for value is asked to pay again. The statement of such a result points up the problem. I believe that the elective share provisions coupled with the definition of augumented share make it clear that bona fide purchasers as transferees are not in danger. The augmented estate is defined in § 15-11-202 and in that definition, transfers are treated at length. In § 15-11-202(2)(a) it is clear that the only transfer that is of concern is where "the...