Chapter 13 - § 13.3 • INCOMPETENT SURVIVING SPOUSE

• Jurisdiction: Colorado

§ 13.3 • INCOMPETENT SURVIVING SPOUSE

Under original Colorado Probate Code § 15-11-203, in the case of a protected person, the elective share was exercisable only by the court in which the protective proceedings were pending and was limited to "the extent found necessary to provide adequate support for the protected person during his probable life expectancy." "Protected person" was defined as a person for whom a conservator had been appointed.

In Sweeney v. Summers,¹² this section was upheld against a constitutional attack that the classification in distinguishing between a competent and incompetent surviving spouse was impermissible.

U.P.C. II makes substantial changes in this regard. First, the election may be made on behalf of a spouse by his or her guardian, conservator, or agent under a power of attorney. If the spouse is an "incapacitated person," the full amount is available, but it is to be placed in a trust for the support of the spouse during his or her lifetime with the remainder then payable under the residuary clause of the will of the original deceased spouse (as if the pre-deceased spouse died just after the surviving spouse) or to the heirs at law of the original deceased spouse.

Based on the legislative history of C.R.S. § 15-11-206(2) (the U.P.C. II provision) the Denver Probate Court ordered a trust established for the benefit of the surviving spouse and required that the assets "be distributed in such a manner so as to protect the spouse's eligibility for Medicaid benefits." The trial court further found that the trust assets were not those of the surviving spouse because the trust was...