Colorado probate law may entitle a disinherited spouse to an elective share of your estate, even if your will says otherwise.
It is a reality of life that some people elect to separate, without getting legally divorced. After leaving, they often create (or alter) probate documents such as wills to reflect that they do not want their still-legal spouse to inherit anything. At the time of death, they may be long-separated from that spouse, but still legally married — and the disinherited spouse may retain elective share rights to an estate.
Disinheriting a Spouse
The problem is that Colorado probate law does not allow you to disinherit a legal spouse, even if you have a will that says otherwise. The portion of an estate that the law requires go to your spouse is called an “elective share,” and it is possible that even a disinherited spouse will either get what is in your will or the elective share, whichever is the greater amount.
The Elective Share
An elective share is 50% of the value of your estate. Colorado probate law makes calculating the value of an estate somewhat complex, as it contains a number of exclusions to the calculations.
Once the value is calculated, the elective share will provide an amount to the surviving spouse based on the length of the marriage, up to 10 years. That formula is simple—the spouse will receive an additional 5% a year every year up to the 10 years, when the spouse will receive 50%.
If you are a disinherited spouse or a spouse who is concerned about being disinherited, or you feel that what was left to you in a will does not sound quite correct, you have nine months after the death or six months after an estate is entered into probate, whichever happens later, to provide notice that you would prefer your elective share. This is technically a will contest, where you are challenging the amount that should be left to you.
Importantly, an elective share can be waived in a prenuptial agreement, so if you have already signed one that includes such a waiver, it is even more important that you make sure that any estate documents specifically include you, as you will not be able to take an elective share.
Dying Without a Will
The elective share comes into play when someone specifically tries to disinherit a spouse through a will (or does so accidentally, perhaps as a result of bad drafting of a will or intestate documents). It does not include situations in which there is no will at all.
In that case, the surviving spouse will receive whatever he or she is due under Colorado’s intestate laws. The formula leaves a large portion of an estate to a surviving spouse, depending on whether the deceased has children of the marriage, or surviving parents. If all that exists are children of the marriage, the surviving spouse may inherit all of the estate.
In some cases, the surviving spouse will have the automatic right to be named personal representative, entitling him or her to administer the assets of the estate in accordance with Colorado intestate laws.
Questions about Colorato estate or probate laws? Contact Ball & Barry for help or with questions about estate or probate law matters.