Chapter 34 - § 34.9 • APPORTIONMENT OF LOSS BECAUSE OF ELECTION BY SPOUSE OR PRETERMISSION OR OMISSION OF SPOUSE

• Jurisdiction: Colorado

§ 34.9 • APPORTIONMENT OF LOSS BECAUSE OF ELECTION BY SPOUSE OR PRETERMISSION OR OMISSION OF SPOUSE

The Code provides an election to the surviving spouse to take a share of the "augmented estate" (see § 13.1).¹¹

When the surviving spouse elects to take his or her forced share of the augmented estate, the Code makes a specific provision for the raising of the elective share.¹² It should be noted that U.P.C. II, effective July 1, 1995, substantially modifies design of the share and changes the rules regarding contribution.

Under the original Code, in general, the augmented estate includes the net probate estate plus the value of inter vivos gratuitous transfers by the decedent to his or her spouse or to others than the spouse in which the decedent retained a beneficial interest or power or control, or made within two years of death in excess of an aggregate amount of $3,000 in either year to any donee, all reduced by the value of any property given to the spouse during life (even though the spouse in turn has given it away, provided the gift by the spouse was of such a nature that the property would have been included in the augmented estate of the surviving spouse had he or she predeceased the decedent), property given to the spouse by will, values given to the spouse through trusts created by the decedent by way of property appointed by him or her or through insurance proceeds, annuity contracts, employee benefit plans, and community property interests (a much abbreviated summary of the Code provisions). The Code provides how the various interests are to be valued and for the burden of proof as to the source of property owned by the spouse or given away by the spouse.¹³ The Code excludes from consideration in computing the value of the augmented estate the value of transfers by the deceased spouse to which the surviving spouse had joined or consented in writing (but merely joining in the filing of a gift tax return is not a joinder or consent by the spouse for augmented estate purposes) and excludes the proceeds of life insurance and annuity and pension contracts payable to third parties.

The design of the augmented estate is based on an objective, formula basis so as to provide certainty in planning and administration and to reduce the amount of litigation that had developed where the intent of the testator had to be examined on a case-by-case basis to determine whether a particular transfer would be deemed to be fraudulent as to the statutory marital...