Chapter 20 - § 20.3 • LIMITATIONS ON TESTAMENTARY DISPOSITION AND SUCCESSION

• Jurisdiction: Colorado

§ 20.3 • LIMITATIONS ON TESTAMENTARY DISPOSITION AND SUCCESSION

§ 20.3.1—Pretermitted Heirs

If a testator fails to provide in his will for any of his children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share of the estate as follows:

• If the testator had no child living when heexecuted the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.¹³³ In satisfying the share of the omitted after-born or after-adopted child, devises made by the will abate under C.R.S. § 15-12-902.
• If the testator has one or more children living when he executed the will, and the will devised property or an interest in property to one or more of the then living children, an omitted after-born or after-adopted child is entitled to receive the share of the testator's estate that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.¹³⁴ The portion of the testator's estate in which the omitted child or after-adopted child is entitled to share is limited to devises made to the testator's then living children under the will.¹³⁵ To the extent feasible, the interest granted an omitted after-born or after-adopted child must be of the same character, whether equitable or legal, present or future, as that devised to the testator's then living children under the will.¹³⁶
• The foregoing does not apply if it appears from the will that the omission was intentional, or the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.¹³⁷
• If at the time of execution of the will, the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.¹³⁸

§ 20.3.2—Marriage After Execution of Will

If a testator's surviving spouse married the testator after the testator executed his will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate she would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised outright to nor in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is so devised to a descendant of such a child, or passes under C.R.S. §§ 15-11-603 or 15-11-604¹³⁹ to such a child or to a descendant of such a child, unless it appears from the will or other evidence that the will was made in contemplation of the testator's...