PART 1 INTESTATE SUCCESSION
| Jurisdiction | Colorado |
The pre-1990 Code's basic pattern of intestate succession, contained in Part 1, was designed to provide suitable rules for the person of modest means who relies on the estate plan provided by law. The 1990 and 2008 revisions were intended to further that purpose, by fine tuning the various sections and bringing them into line with developing public policy and family relationships.
1990 Revisions. The principal features of the 1990 revisions were:
1. So-called negative wills were authorized, under which the decedent who dies intestate, in whole or in part, can by will disinherit a particular heir.
2. A surviving spouse was granted the whole of the intestate estate, if the decedent left no surviving descendants and no parents or if the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has no descendants who are not descendants of the decedent. The surviving spouse receives the first $200,000 plus three-fourths of the balance if the decedent left no surviving descendants but a surviving parent. The surviving spouse receives the first $150,000 plus one-half of the balance of the intestate estate, if the decedent's surviving descendants are also descendants of the surviving spouse but the surviving spouse has one or more other descendants. The surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate, if the decedent has one or more surviving descendants who are not descendants of the surviving spouse. (To adjust for inflation, these dollar figures and other dollar figures in Article II were increased by fifty percent in 2008.)
3. A system of representation called per capita at each generation was adopted as a means of more faithfully carrying out the underlying premise of the pre-1990 UPC system of representation. Under the per-capita-at-each-generation system, all grandchildren (whose parent has predeceased the intestate) receive equal shares.
4. Although only a modest revision of the section dealing with the status of adopted children and children born of unmarried parents was then made, the question was under continuing review and it was anticipated that further revisions would be forthcoming in the future.
5. The section on advancements was revised so that it applies to partially intestate estates as well as to wholly intestate estates.
2008 Revisions. As noted in Item 4 above, it was recognized in 1990 that further revisions on matters of status were needed. The 2008 revisions fulfilled that need. Specifically, the 2008 revisions contained the following principal features:
Part 1 Divided into Two Subparts. Part 1 was divided into two subparts: Subpart 1 on general rules of intestacy and Subpart 2 on parent-child relationships.
Subpart 1: General Rules of Intestacy. Subpart 1 contains Sections 2-101 (unchanged), 2-102 (dollar figures adjusted for inflation), 2-103 (restyled and amended to grant intestacy rights to certain stepchildren as a last resort before the intestate estate escheats to the state), 2-104 (amended to clarify the requirement of survival by 120 hours as it applies to heirs who are born before the intestate's death and those who are in gestation at the intestate's death), 2-105 (unchanged), 2-106 (unchanged), 2-107 (unchanged), 2-108 (deleted and matter dealing with heirs in gestation at the intestate's death relocated to 2-104), 2-109 (unchanged), 2-110 (unchanged), 2-111 (unchanged), 2-112 (unchanged), 2-113 (unchanged), and 2-114 (deleted and replaced with a new section addressing situations in which a parent is barred from inheriting).
Subpart 2: Parent-Child Relationships. New Subpart 2 contains several new or substantially revised sections. New Section 2-115 contains definitions of terms that are used in subpart 2. New Section 2-116 is an umbrella section declaring that, except as otherwise provided in Section 2-119(b) through (e), if a parent-child relationship exists or is established under this subpart 2, the parent is a parent of the child and the child is a child of the parent for purposes of intestate succession. Section 2-117 continues the rule that, except as otherwise provided in Sections 2-120 and 2-121, a parent-child relationship exists between a child and the child's genetic parents, regardless of their marital status. Regarding adopted children, Section 2-118 continues the rule that adoption establishes a parent-child relationship between the adoptive parents and the adoptee for purposes of intestacy. Section 2-119 addresses the extent to which an adoption severs the parent-child relationship with the adoptee's genetic parents. New Sections 2-120 and 2-121 turn to various parent-child relationships resulting from assisted reproductive technologies in forming families. As one researcher reported: "Roughly 10 to 15 percent of all adults experience some form of infertility." Debora L. Spar, The Baby Business 31 (2006). Infertility, coupled with the desire of unmarried individuals to have children, have led to increased questions concerning children of assisted reproduction. Sections 2-120 and 2-121 address inheritance rights in cases of children of assisted reproduction, whether the birth mother is the one who parents the child or is a gestational carrier who bears the child for an intended parent or intended parents. As two authors have noted: "Parents, whether they are in a married or unmarried union with another, whether they are a single parent, whether they procreate by sexual intercourse or by assisted reproductive technology, are entitled to the respect the law gives to family choice." Charles P. Kindregan, Jr. & Maureen McBrien, Assisted Reproductive Technology: A Lawyer's Guide to Emerging Law and Science 6-7 (2006). The final section, new Section 2-122, provides that nothing contained in Subpart 2 should be construed as affecting application of the judicial doctrine of equitable adoption.
Historical Note. This General Comment was revised in 2008.
Cross references: For clarification of the term "surviving spouse", see § 15-11-802.
■ 15-11-101. Intestate estate. (1) Any part of a decedent's estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent's heirs as prescribed in this code, except as modified by the decedent's will.
(2) A decedent 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 that individual or a member of that 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 that class had disclaimed his or her intestate share.
Source: L. 94: Entire part R&RE, p. 976, § 3, effective July 1, 1995.
Editor's note: This section is similar to former § 15-11-101 as it existed prior to 1995.
Law reviews. For article on administration of estates, see 10 Rocky Mt. L. Rev. 288 (1938). For note, "Non-Testamentary Transfers Effective at Death", see 24 Rocky Mt. L. Rev. 365 (1952). For article, "Administration of Intestate Estates", see 29 Rocky Mt. L. Rev. 571 (1957). For article, "An Ecclesiastical Role for the Lawyer in a Secular Society", see 44 Den. L.J. 275 (1967). For article, "Probate and Non-probate Distribution Issues in the Case of A Murder/Suicide", see 17 Colo. Law. 1061 (1988).
Annotator's note. Since § 15-11-101 is similar to repealed laws antecedent to CSA, C. 176, § 1, relevant cases construing those provisions have been included in the annotations to this section.
Escheats and forfeitures are not favored by law, and a doubt as to whether property is subject to escheat is to be resolved against the state. Danks v. Herrmann, 94 Colo. 546, 31 P.2d 912 (1934).
Section inoperative where will disposes of the estate. When the existence of a will disposing of the estate is once conceded, no heir can establish any rights by inheritance on simple proof of descent. Under such circumstances the statutes of intestate succession do not become operative. Hall v. Cowles' Estate, 15 Colo. 343, 25 P. 705 (1890).
Where a will clearly limits participation in the estate to the devisees and unambiguously excludes other family members from participation, the omitted heirs cannot participate by intestacy in the distribution of the trust even if no devisee survives the termination of the trust. In re Estate of Walter, 97 P.3d 188 (Colo. App. 2003).
The right to inherit is statutory and the statute which governs is embraced in §§ 15-11-101 to 15-11-113 inclusive. Wilson v. Wilson, 95 Colo. 159, 33 P.2d 969 (1934).
The policy of our law is to have property descend to the heirs in the manner provided in this article. Danks v. Herrmann, 94 Colo. 546, 31 P.2d 912 (1934).
Remainder not devised or bequeathed shall be distributed as estate of an intestate. Provisions of a will reviewed, and held to dispose of a life estate in the property only, being silent with respect to the remainder, which was not devised or bequeathed, is to be distributed in the same manner as the estate of an intestate. Blatt v. Blatt, 79 Colo. 57, 243 P. 1099 (1926).
A testator is presumed to know the laws of the state in which he lives concerning the descent and distribution of intestate property. Blatt v. Blatt, 79 Colo. 57, 243 P. 1099 (1926).
The law of an intestate's actual domicile at the time of his death governs the intestate succession of his property, when it is all situate in that state. Blatt v. Blatt, 79 Colo. 57, 243 P. 1099 (1926).
Heirs cannot complain of steps taken by intestate to deprive them of inheritance. During the lifetime of the intestate, his property was subject to his control and disposition. If it was his pleasure to take such steps as would increase the inheritance of this minor grandchild, he could do so, either by adoption or testamentary provision, and his...
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