Chapter 30 - § 30.7 • DESTRUCTION, DISPOSITION, OR CHANGE IN CHARACTER (C.R.S. § 15-11-606)

• Jurisdiction: Colorado

§ 30.7 • DESTRUCTION, DISPOSITION, OR CHANGE IN CHARACTER (C.R.S. § 15-11-606)

Ademption by destruction, disposition, or change of character applies only to specific devises (see § 29.2 for definition of specific devise). If the thing given is destroyed by the testator or someone else, it cannot be in being at death to pass by the will, and, accordingly, the devise fails. The rule does not apply to demonstrative devises because if the property indicated as the source of the payment is destroyed, the devise is treated as a general one (see § 29.4 for definition of demonstrative devise).

When the subject of the gift continues to exist during the testator's lifetime but has been changed in form slightly, ademption does not take place because it still is identifiable as the thing described in the will. Examples of slight changes are renewal or extension of a note or mere changes in the corporate structure of a corporation, the stock of which has been given specifically. It has been held that reorganization of the corporation or consolidation with another corporation, reduction or increase in par value, stock splits, and changes of like character do not destroy the gift, but the contrary also has been held.²² See § 30.6. On the other hand, a gift of a bank account has been held to be adeemed when the testator withdraws the funds and purchases bonds. This area is one in which there is seemingly irreconcilable conflict in decisions dealing with what appear to be substantially similar situations.²³

The area is dealt with in detail by the Code. Under the original C.R.S. § 15-11-608, a specific devisee had the right to any of the specifically devised property remaining, together with any balance remaining on the purchase price (and security) owing from a purchaser on account of sale of the property by the decedent; any amount of condemnation award for property; the unpaid proceeds of fire or casualty insurance; and property owned by the testator at death as the result of foreclosure or obtained in lieu of foreclosure (where the foreclosure was conducted by a conservator).

Further, if the specifically devised property was sold by a conservator (or if the conservator received condemnation proceeds or insurance proceeds), under C.R.S. § 15-11-606, it is provided that the specific devise is satisfied by payment of an amount equal to the net sale price, condemnation award, or insurance proceeds (subject to reduction by any partial amounts receivable under the above...