The loss of a spouse is a devastating life event in its own right, but the loss can be compounded when there is confusion about a surviving spouse’s rights to the deceased spouse’s estate. Colorado has taken measures to protect the financial well-being of a surviving spouse, regardless of whether or not the decedent left a valid last will and testament.

Colorado is one of a minority of states that recognize common-law marriage. If a couple meets the criteria for a valid common-law marriage, the survivor has the same rights as would the surviving spouse of a valid ceremonial marriage.

Elective Share

In Colorado, as in most states, marriage is considered a partnership. For this reason, the state does not allow one spouse to disinherit the other, and a surviving spouse is entitled to a minimum amount of property from the probate estate. (Jointly-held property, such as a joint bank account, passes to the surviving joint owner, and is not part of the probate estate.)

If a deceased person left a will, but failed to recognize his or her spouse in the will (or left a minimal bequest), the surviving spouse may elect to receive a percentage of the estate despite what the will dictates. This percentage is known as an “elective share.” However, receipt of the elective share is not automatic. The surviving spouse must challenge the will and assert his or her rights within nine months after the decedent’s death, or within six months after the decedent’s will is admitted to probate, whichever comes later. Although this right is provided by Colorado law, it can be waived in a valid prenuptial agreement.

If the decedent did not have a valid will, the share of the estate to which a surviving spouse is entitled depends on whether the decedent had children outside of the marriage, and on the age of those children. Also, if there is no will, the surviving spouse has priority to act as the estate’s personal representative.

Family Allowance and Personal Property Exemption

As anyone who has ever administered an estate knows, probate matters take time. While an estate is being administered, a surviving spouse and any dependent children may need funds to support themselves. The Colorado Probate Code provides for a “family allowance” of $24,000 from the estate payable to a surviving spouse for this purpose. The court in which the estate is being administered has some discretion to alter the amount of the allowance.

In addition to the family allowance, Colorado law provides for a “personal property exemption” to which a surviving spouse may be entitled. As of this writing, the amount of the exemption is $26,000. Both the family allowance and the personal property exemption have higher priority than payments to creditors; that is, they are paid to the family before creditors may receive payment from the decedent’s estate.

If your spouse is recently deceased and you are concerned that your rights as surviving spouse are not being honored, you have a very limited time in which to act. Contact the experienced estate planning and probate attorneys at Davis Schilken at 303-670-9855 to arrange a consultation at one of our two locations in The Denver Tech Center and Golden, Colorado. We look forward to working with you.