Chapter 13 - § 13.5 • ON WHAT ELECTION OPERATES

• Jurisdiction: Colorado

§ 13.5 • ON WHAT ELECTION OPERATES

The election operates on all of the parts of the augmented estate that are affected.

It has been held that the law of the domicile of the testator governs the right to elect with respect to intangible personalty, rather than the law of the jurisdiction in which the personalty was physically located, despite a provision in the will that the law of the latter state should control.¹⁸ This decision is in accord with the general rule that the law of the domicile governs the devolution of personal property in other jurisdictions, but the outcome in particular cases can depend on whether the action was first taken in the domiciliary or the ancillary administration and on differences in procedures and time limits in the respective jurisdictions. Where there is real property outside of the domicile, there is greater lack of uniformity in the decisions. While logically the effects of election or non-election should be determined in accordance with the law of the testator's domicile since the entire estate should be treated as a single unit, in order to preserve regularity of title to real property some jurisdictions hold that election must be made in accordance with, and within the time prescribed by, the law of the situs. The rationale of these decisions is, in part, that a purchaser of the property should not be required to look to the records at the domicile but should be fully protected by the state of the records at the situs. It appears that the safe course would be to comply with the laws of both domicile and situs if possible.¹⁹

The Code expresses a strong policy on this choice of law issue. Under C.R.S. §...