Chapter 13 - § 13.2 • SPOUSE'S ELECTION UNDER THE CODE

• Jurisdiction: Colorado

§ 13.2 • SPOUSE'S ELECTION UNDER THE CODE

Dower and curtesy are abolished in Colorado,¹ and former statutory provisions regarding a spouse's election were repealed concomitant with the adoption of the Code, effective July 1, 1974.

The elective share provisions of the code have been thoroughly revised by U.P.C. II, effective July 1, 1995. The original Code provisions will be discussed first, then the U.P.C. II changes will be highlighted. Note that the legislature in 1996 enlarged the duty of the personal representative to inform interested persons of the opening of an estate by mentioning the possible entitlement of a spouse to elective share rights.² C.R.P.P. 8.4 and CPC 42 (now JDF 940) were revised accordingly. The elective share provisions were also amended in 2014. These amendments were generally not substantive, except for the provision regarding interest on delayed elective share funding. The amendments did, however, for inexplicable reasons, change the numbering of several provisions. While an attempt has been made in this chapter to update this numbering, research into older cases and cases from other jurisdictions must be undertaken with care with respect to citation of statutory sections.

The effect of exercising the statutory right of election never has been simple. The Code provisions, while requiring a complex mathematical exercise, have the virtue of bringing more certainty and predictability into the law. See § 13.18 for a discussion of the related provision for the omitted spouse married after execution of the will.

The potential disruption created by the right of election under the Code is increased by the fact that the election is applicable to both testate and intestate estates, thus enlarging the number of cases in which election will be a factor in estate administration. The stated purpose of the drafters of the Code is to prevent the owner of wealth from making transfers during marriage of such a nature as to constitute will substitutes, which, either intentionally or unintentionally, decrease the share of the surviving spouse in such wealth on death below what was deemed to be a fair share, but also to prevent the surviving spouse from receiving more than that share of the wealth by keeping, without an accounting, certain of the transfers from the decedent to the survivor during the marriage. The reasoning of the drafters of the Code in this regard is stated in the official comments to Article 2, Part 2 of the original Uniform Probate Code.³ Where the decedent's estate is intestate, the problems involved in tracing the assets to and from the spouses are much the same as in testate cases, and there will be the same problems regarding recapturing property to make up the elective share, but in intestate cases, there cannot be the complications that arise in testate cases when a will provides for a trust for the spouse and it is necessary to abate devises in order to make up the share passing to the spouse by reason of the election (see § 34.9).

The meaning of the term "augmented estate" is defined in the Code in detail and will be discussed later. The Colorado Code as originally enacted allowed an alternative election against the inventoried estate,⁴ but this option was deleted by subsequent legislation,⁵ so that the original Colorado Code election provision essentially parallels that of the original Uniform Code provisions.

Augmented estate is defined in the original Code as:

1) "Estate," reduced by funeral and administration expenses, exempt property and family allowances, and enforceable claims (the term "claims" being defined in Colorado Revised Statutes § 15-10-201(6) (1973) to exclude death taxes);
2) To which shall be added the sum of the following transfers by the decedent to anyone other than a bona fide purchaser:

a) The value of property transferred by gift, wholly or in part, during the present marriage to the surviving spouse, and to others than the surviving spouse, of the following types:

i) Transfers retaining at death the possession, enjoyment, the right of enjoyment, or the right to income from property;
ii) Transfers retaining at death the power, exercisable either alone or in conjunction with any other persons to revoke or consume, invade, or dispose of the principal for his own benefit;
iii) Transfers whereby at the death of the decedent, the property was held by the decedent and another with the right of survivorship;
iv) Transfers within two years of death to the extent that the transfers to any donee in either of the years exceeded $3,000;

b) But excluding any transfer made with the joinder or consent of the surviving spouse. In the absence of other evidence, spousal joinder in the filing of a gift tax return is not "joinder" of the surviving spouse for this purpose.⁶

Property given irrevocably during the...