Colorado § 15-11-203 - Composition of the marital-property portion of the augmented estate.

§ 15-11-203. Composition of the marital-property portion of the augmented estate.

(1) Subject to section 15-11-208, the value of the augmented estate, to the extent provided in sections 15-11-204, 15-11-205, 15-11-206, and 15-11-207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitutes:

(a) The decedent's net probate estate;

(b) The decedent's nonprobate transfers to others;

(c) The decedent's nonprobate transfers to the surviving spouse; and

(d) The surviving spouse's property and nonprobate transfers to others.

(2) The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection (1) of this section multiplied by the following percentage:

If the decedent and the spouse

were married to each other:

The percentage is:

Less than 1 year​

Supplemental amount only.

1 year but less than 2 years

10%

2 years but less than 3 years

20%

3 years but less than 4 years

30%

4 years but less than 5 years

40%

5 years but less than 6 years

50%

6 years but less than 7 years

60%

7 years but less than 8 years

70%

8 years but less than 9 years​

80%

9 years but less than 10 years​

90%

10 years or more

100%

Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1223, § 2, effective August 6.

Editor's note: This section is similar to former § 15-11-201 (1) as it existed prior to 2014.

OFFICIAL COMMENT

Subsection (a). Subsection (a) implements the partnership theory by providing that the elective-share amount is 50 percent of the value of the marital-property portion of the augmented estate. The augmented estate is defined in Section 2-203(a) and the marital-property portion of the augmented estate is defined in Section 2-203(b).

Cross Reference. To have the right to an elective share under subsection (a), the decedent's spouse must survive the decedent. Under Section 2-702(a), the requirement of survivorship is satisfied only if it can be established that the spouse survived the decedent by 120 hours.

Historical Note. This Comment was revised in 2008.

ANNOTATION

Law reviews. For article, "Ownership of Personal Property Accumulated During a Marriage", see 17 Colo. Law. 623 (1988).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

The legislative purpose in enacting the concept of the augmented estate was twofold: (1) To attempt to prevent the owner of wealth from making arrangements that transmit his property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share and (2) to insure that the spouse is adequately provided for. Matter of Estate of Grasseschi, 776 P.2d 1136 (Colo. App. 1989).

Except where inter-vivos transfers reduce the probate estate below a threshold amount, then all claims and expenses should be allowed against the total assets of the augmented estate and the surviving spouse's elective share awarded from a net value. Matter of Estate of Smith, 718 P.2d 1069 (Colo. App. 1986).

And computation of a negative value for the probate estate is merely an accounting tool to arrive at a proper allocation of the benefits and burdens accruing to the estate. Matter of Estate of Smith, 718 P.2d 1069 (Colo. App. 1986).

Application to joint tenancies. The probate court properly refused to apply the augmented estate provisions of this section to joint tenancies where the joint tenancies vested prior to the effective date of the Colorado probate code. Estate of Barnhart v. Burkhardt, 38 Colo. App. 544, 563 P.2d 972 (1977), aff'd, 194 Colo. 505, 574 P.2d 500 (1978).

Right of election may be waived. Where a husband and wife agree with each other to waive any and all claims of every kind to any property that might be due to either from the estate of the other, it is held that a claim of the widow for an allowance from the husband's estate was properly denied. Brimble v. Sickler, 83 Colo. 494, 266 P. 497 (1928).

Waiver does not have to be express. It is sufficient if some term that clearly comprehends the scope of those words, and admits of no doubt, is used. Vincent v. Martin, 91 Colo. 106, 11 P.2d 1089 (1932).

Language constituting waiver. Where by contract between husband and wife the wife agreed to accept certain bequests under a will to be and that was executed by the husband "in full satisfaction of any and all rights of dower, statutory allowances and rights of inheritance as surviving widow", she thereby waived her right to a widow's allowance. Vincent v. Martin, 91 Colo. 106, 11 P.2d 1089 (1932).

Wife did not waive her statutory right to take against her husband's will when neither the will, nor a signed statement by the wife, contained specific language of waiver of her statutory entitlement to one-half her husband's estate. In re Estate of Smith, 674 P.2d 972 (Colo. App. 1983).

Waiver cannot arise from presumption, assumption, or construction. It must be in terms clearly and definitely indicating a purpose to waive the specific statutory right. In re Williams' Estate, 101 Colo. 262, 72 P.2d 476 (1937); In re Bradley's Estate, 106 Colo. 500, 106 P.2d 1063 (1940); In re Griffee's Estate, 108 Colo. 366, 117 P.2d 823 (1941).

State's interest in certainty of waiver. One reason why a waiver of the right should appear beyond any doubt is that the state also is vitally interested. If the husband fails to provide support for his widow, the state may have to do so. In re Bradley's Estate, 106 Colo. 500, 106 P.2d 1063 (1940).

Intention to waive allowance must be established beyond doubt. The right to a widow's allowance is strongly favored by our representative legislative bodies as is indicated by long-standing laws upon the subject, and the right will not be held to have been waived or relinquished except in cases where the intention to waive or relinquish is established beyond doubt. In re McLaughlin's Estate, 117 Colo. 67, 184 P.2d 130 (1947).

A stipulation as to division of property entered into in a suit for divorce and incorporated in the interlocutory decree was not intended to waive any statutory allowance that the wife might enjoy as her husband's widow, and, on the death of the husband before the divorce became final, the widow was entitled to her allowance. In re McLaughlin's Estate, 117 Colo. 67, 184 P.2d 130 (1947).