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Elective Share for Spouses

In Colorado, spouses have the option to receive an “elective share” of their deceased spouse’s estate. The option to receive the elective share can only be taken away by a marital agreement (sometimes called a prenuptial/postnuptial agreement). Without a marital agreement, Colorado surviving spouses have three options:

  1. Receive what was declared in the will (if there was a will)
  2. If there was no will, receive what Colorado intestate laws grant; OR
  3. Decide to receive their elective share.

Historically, the concept of elective share for spouses was created to ensure widows always had legal access to some portion of an estate. The thought behind this concept was that the public would not be financially responsible for widows.
Colorado’s elective share law applies when the deceased spouse passes away while living in Colorado. If the deceased spouse was living out of state, the elective share law of Colorado does not apply.

What is the elective share?

Understanding how the elective share is calculated can be confusing. Depending on the length of the marriage, the elective share is between 5% and 50% of what is called the augmented estate.
The augmented estate is calculated in two steps:

STEP 1: Total all assets of the deceased. This includes all property located in Colorado or out of state. It also includes all assets despite how they are transferred or payable on death. The total is before any disbursements, transfers, repayments, or any other removal from the estate.

STEP 2: Divide the amount calculated in Step 1 by 50%.

The marital portion of the augmented estate is then calculated as follows:

STEP 3: Determine the “length of marriage factor.” For every year of marriage, your factor increases by 10%, maxing out at 100% (for ten years of marriage). For example, if the marriage was two years, the factor is 20%; if the marriage was seven years, the factor is 70%; and if the marriage was 25 years, the factor is 100%. Once the length of marriage factor is calculated, multiply the amount in Step 2 by the length of marriage factor.

How does the surviving spouse receive the elective share?

If the surviving spouse chooses the elective share over what the will provides (or what intestate law provides), they must take action to receive the elective share. Without acting, the law assumes they have decided not to receive the elective share. To receive their elective share, the surviving spouse must petition the court and give notice to the personal representative of the estate. Additionally, the petition and notice must be given within nine months from when the spouse passed or six months from when the probate case began.

Common Law Marriage

In Colorado, marriage can be created by the traditional marriage license or by common law (i.e., “common law marriage”). If a survivor claims they were common law married to the deceased, the court must determine (1) if there was a common law marriage and (2) for how long the common law marriage existed. For a discussion on common law marriage, click HERE.

Making or defending a claim for an elective share is complex. Not only are you dealing with the procedures and rules of court, but you also need to calculate the value of the entire estate. An attorney with experience in the intensive calculations and courtroom procedures is necessary to achieve your goals. The attorneys at Burnham Law know how to gather and present the evidence for your case; we use the latest technology and employ financial experts when needed. Do not go into this complex process alone.

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