Chapter 13 - § 13.4 • FORM AND TIME OF ELECTION

• Jurisdiction: Colorado

§ 13.4 • FORM AND TIME OF ELECTION

The election must be filed in writing in the court by a petition, with a copy mailed to the representative, within nine months after the decedent's death or six months after the decedent's will is admitted to probate, whichever time limitation expires later, but the court may extend the time for cause shown.¹⁴

In Estate of Burnford,¹⁵ a district court referee denied an elective share claim as late filed. Appeal to the court of appeals was denied for failure first to petition the district court for review as required by Colorado Rules for Referees, Rule 5(c).

The surviving spouse must give notice of the hearing on the petition to all interested persons and to all persons who will be adversely affected by the taking of the elective share. The election may be withdrawn before it is acted on. After notice and hearing, the court shall determine the amount of the elective share and order its payment from the augmented estate, including third-party contribution as may be appropriate; and fix the liabilities of all parties, including any trustees who may be involved.¹⁶ The Code provides a limitation on the amount any person may be required to contribute by reason of the election, and, in effect, puts the burden of unreachable assets on the spouse (as opposed to increasing the pro rata share of third parties subject to contribution). The Code states that the order of the court regarding the payment of the elective share and the adjustments resulting from it may be enforced by other courts in this state and elsewhere.¹⁷

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Notes:

^[14] C.R.S. §§ 15-11-205(1) and (2).

^[15] Estate of...