Disinherited Spouse And The Elective Share

Disinherited Spouse And The Elective Share

In Colorado, you can not disinherit a spouse. A surviving spouse omitted or disinherited from a will still has property rights in the estate. Sometimes omitting a spouse is intentional, sometimes negligent. Colorado law entitles a spouse to receive an elective share of the estate or to take against the will. Depending on the length of the marriage, the surviving spouse’s share is between 5% and 50% of the augmented estate. A spouse is defined as someone who is a party to a marriage.

Disinherited Spousal Request for Elective Share

The elective share does not come automatically. To the contrary, the surviving spouse must petition the court and give notice to the personal representative, they are making the election. Moreover they don’t have a lot of time to do it; either nine months from when the spouse died, or six months from when the court started the probate process. The elective-share amount is 50% of the value of the marital-property portion of the augmented estate.

Augmented Estate Assets

Once the disinherited spouse files a petition with the court, the personal representative (executor) must determine the augmented estate. An augmented estate’s assets consists of the sum of the values of all property; whether they’re real or personal; movable or immovable; tangible or intangible. Additionally, it doesn’t matter if the property is located in Colorado or out of state. Probate assets are those transferred by will or personal property memorandum. Contrasting are non-probate assets which are those that are transfer-on-death (TOD), or payable-on-death (POD). Also assets which have beneficiary designations such as retirement and investment accounts, as well as property titled in assets titled in joint tenancy. Lastly, beneficiary deeds, trust assets, life insurance, and even some even some gifts. Transfers to the spouse are included in the augmented estate as well.

Calculating the Augmented Estate

Briefly, to calculate the augmented estate, the personal representative must total the probate and non-probate assets; divide by two which makes it 50%, then factor in the length of the marriage. The length of marriage rule is simply this, every year of the marriage counts as 10% of the elective share, until you get to 10 years. At 10 years 100% of the elective share is 50% of the martial-portion of the estate. At 9 years it’s 45%, at 8 years it’s 40%, and so on until at 1 year the elective share is 5%.

Final Thoughts

Marital property rights are deeply rooted in our common law traditions of dower and curtsy. The Magna Carta and even the Code of Hammurabi create property rights for widowed spouses. So before you decide to disinherit your spouse know your spouse will be entitled to his or her elective share no matter what’s in your will.

If you need help drafting your will or if you need assistance with probate matters; please schedule a meeting.

This article is for informational purposes only and does not constitute legal advice about your case or situation. There may be exceptions to the information outlined above. Please consult an attorney if you have specific questions about your estate or a decedent’s estate.

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