Chapter 34 - § 34.8 • OMITTED SPOUSE AND CHILDREN; GENETIC CHILDREN

• Jurisdiction: Colorado

§ 34.8 • OMITTED SPOUSE AND CHILDREN; GENETIC CHILDREN

As noted in Chapter 14, "Pretermitted Child — Omitted Spouse," the Code provides protection for the decedent's spouse and children under certain circumstances against unintentional disinheritance. When the Code applies, the omitted family member is entitled to an intestate share. Note that the statutory protections are not based on an election; rather, they are entitlements. The matter is complicated by the fact that under U.P.C. II, there are a number of factors extrinsic to the will (nonprobate transfers, the decedent's statements, etc.) that have to be taken into account in determining whether the omission of the person was intentional. The matter may become risky when one recalls that there is authority for the proposition that a fiduciary is liable for an erroneous distribution even if he or she acted reasonably and in good faith. How can the representative, in connection with preparation for closing, be certain that the statutory entitlements described above are satisfied unless the circumstances are brought to his or her attention? It would clarify the matter if the Code were amended to require that the entitlement be elected or claimed in a manner similar to the Colorado modifications to the Uniform Probate Code requiring that the exempt property and family allowances (entitlements under the Code) be requested within a prescribed time period.

The recent amendments to the intestacy laws dealing with the right of children conceived as a result of assisted reproduction has an impact on the process of estate administration.

Under C.R.S. § 15-11-120(4), the parent-child relationship exists in the case of (1) the husband making a sperm bank donation; (2) the husband then dying; and (3) the wife, following the husband's death, then using the deposited sperm to conceive a child. In such case, the child will be entitled to an intestate share of the husband's estate...