Chapter 20 - § 20.1 • INTESTATE SUCCESSION
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§ 20.1.1—In General
The State of Colorado in its sovereign capacity has the power to regulate and control the transmission of property by inheritance.1
Property passes by intestate succession2 notwithstanding the fact that there has been no determination of heirship;3 a determination of heirship is not a prerequisite to assertion of rights acquired from an heir of the deceased.4
Any part of a decedent's estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent's heirs, except as modified by the decedent's will.5 A testator by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If the individual or a member of the class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of the class had disclaimed his or her intestate share.6
§ 20.1.2—Persons Who May Inherit
An individual born before a decedent's death who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period.7 An individual in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives 120 hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived 120 hours after birth, it is deemed that the individual failed to survive for the required period.8 This rule is not applicable if its application would result in a taking of intestate estate by the state under C.R.S. § 15-11-105.9
One who is divorced from the decedent or whose marriage has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death; a decree of separation that does not terminate the status of husband and wife is not a divorce.10 A surviving spouse does not include:
• One who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in Colorado, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or enter into a common-law marriage.11
• One who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony or enters into a common-law marriage with a third person.12
• One who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.13
Under the common law of descent, following the feudal system, the father and mother and all persons in the ascending line could not inherit, but even in England this rule was altered by statute14 so that "the nearest lineal ancestor, or his issue" could inherit "on failure of issue of the last purchaser."15 In Colorado, the parents may inherit if there be no children nor their descendants.16 Thus, a "linear heir" is one who inherits in line either ascending or descending from the common source, as distinguished from a collateral heir.17
A relative of half blood inherits the same share he or she would inherit if he or she were of whole blood.18
An individual is not disqualified to take as an heir because the individual or an individual through whom he or she claims is or has been an alien.19
§ 20.1.3—Share of Surviving Spouse or Party to Civil Union
In General
For the rules of intestate succession from 1861 to date, see the Appendix to this Chapter.
Elective Share
If a married person domiciled in Colorado dies, that person's surviving spouse or party to civil union may elect to take an elective share, not greater than one-half, of the augmented estate.20 (The right, if any, of a surviving spouse or party to civil union of a decedent who dies domiciled outside the State of Colorado to take an elective share in property in Colorado is governed by the law of the decedent's domicile on death.21 ) Under the re-enactment of the Probate Code effective July 1, 1995,22 the elective share is fixed by a schedule depending upon the length of the marriage.23 Under certain circumstances, the surviving spouse is entitled to a supplemental elective-share payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers.24
July 1, 1974 to July 15, 1975: As originally enacted, the augmented estate included the value of property transferred by the decedent during his or her present marriage to the extent that the decedent did not receive adequate and full consideration in money or money's worth if the transfer was of certain specified types.25 A transfer was excluded in determining the value of the augmented estate if made with the written consent or joinder of the surviving spouse.26 Original transferees from or appointees of the decedent and their donees, to the extent that the donees have the property or its proceeds, were required to contribute to the elective share of the surviving spouse.27 The record would not disclose whether the decedent received adequate and full consideration in money or money's worth, and the statute contained no provision protecting bona fide purchasers. Therefore, for conveyances made during this period, the joinder of the non-owner spouse was required.28
July 16, 1975 to June 30, 1995: The amendment effective July 16, 197529 provided that the augmented estate includes the value of property transferred to anyone other than a bona fide purchaser by the decedent during his or her most recent marriage if the transfer was of certain specified types. A bona fide purchaser was a purchaser for value in good faith without notice of an adverse claim. A recorded instrument on which a state documentary fee is noted was prima facie evidence that the transfer was made to a bona fide purchaser. A transfer was excluded in determining the value of the augmented estate if made with the written consent or joinder of the surviving spouse.30 Original transferees from or appointees of the decedent and their donees, to the extent that the donees had the property or its proceeds, were required to contribute to the elective share of the surviving spouse.31 The rights of bona fide purchasers of any property included in the augmented estate were not affected.32
On and after July 1, 1995: A transfer is excluded in determining the value of the augmented estate to the extent the decedent received adequate and full compensation in money or money's worth or if made with the written consent or joinder of the surviving spouse.33 Only the original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective share or supplemental elective share amount. A person liable to make contribution may choose to give up the proportional part of the decedent's nonprobate transfers or pay the value of the amount for which he or she is liable.34 A bona fide purchaser who purchases property from a recipient or who receives payment or other item of property in partial or full satisfaction of a legally enforceable obligation is neither obligated to return the payment, item of property, or benefit nor liable for the amount of the payment or the value of the item of property or benefit.35 A "bona fide purchaser" is a purchaser for value in good faith and without notice of an adverse claim. The notation of a state documentary fee on a recorded instrument is prima facie evidence that the transfer was made to a bona fide purchaser.36
The elective-share amount and the supplementary elective-share amount are in addition to the surviving spouse's exempt property and the family allowance.37
Unless it provides to the contrary, a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all right to the elective share. Express language of waiver need not be set forth in the property settlement.38
§ 20.1.4—Share of Heirs Other Than Surviving Spouse
For the rules of intestate succession from 1861 to date, see the Appendix to this Chapter.
§ 20.1.5—Advancements
An advancement is a perfect and irrevocable gift made by a parent during his or her lifetime to his or her child with the intention on the part of the donor that the gift shall represent a part, or the whole, of the portion of the donor's estate that the donee would be entitled to on the death of the donor.39 The purpose of the law regarding advancements is to secure equality among the children of an intestate where the intestate had not indicated a contrary intent, but the purpose is not to produce equality between the surviving spouse and the children.40
If an individual dies intestate as to all or a portion of his or her estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement, or (2) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.41 Property advanced is valued as of the time the heir came into possession or enjoyment of the property, or as of the time of the decedent's death, whichever first occurs.42 If...
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