Colorado § 15-11-211 - Proceeding for elective-share - time limit.

§ 15-11-211. Proceeding for elective-share - time limit.

(1) Except as provided in subsection (2) of this section, the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective-share within nine months after the date of the decedent's death or within six months after the probate of the decedent's will, whichever limitation later expires. The surviving spouse must give written notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective-share.

(2) Within nine months after the decedent's death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent's death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court, for cause shown by the surviving spouse, may extend the time for election.

(3) If the spouse makes an election by filing a petition for the elective-share more than nine months after the decedent's death, the decedent's nonprobate transfers to others are not included within the augmented estate unless the spouse had filed a petition for extension prior to the expiration of the nine-month period and the court granted the extension.

(4) The surviving spouse may withdraw his or her demand for an elective-share at any time before entry of a final determination by the court. Written notice of such withdrawal must be given to persons interested in the estate and the distributees and recipients of portions of the augmented estate whose interests may be adversely affected by the taking of the elective-share.

(5) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 15-11-209 and 15-11-210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he or she would have been under sections 15-11-209 and 15-11-210 had relief been secured against all persons subject to contribution.

(6) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1230, § 2, effective August 6.

Editor's note: This section is similar to former § 15-11-205 as it existed prior to 2014.

ANNOTATION

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

Purpose of section. The purpose of this section is to assure timely notice to the court, administrative officials, and interested parties, that the surviving spouse is dissatisfied with the will and elects to take and receive one-half of the estate of the testator. In re Stitzer's Estate, 103 Colo. 529, 87 P.2d 745 (1939).

This section is simply one of limitation fixing a definite time after which an election, if filed, cannot be considered. In re Stitzer's Estate, 103 Colo. 529, 87 P.2d 745 (1939).

This section is not directory only, but mandatory. In re Sheely's Estate, 102 Colo. 194, 78 P.2d 378 (1938).

Widow's election must be made within time allowed. In re Sheely's Estate, 102 Colo. 194, 78 P.2d 378 (1938).

Former § 15-11-205 (now this section) sets forth the time limits within which the surviving spouse must elect to take an augmented share of the estate. Because the renunciation described in former § 15-11-207 (now § 15-11-213) is inextricably intertwined with the entire election procedure, the time constraints enunciated in this section must also apply to it. Matter of Estate of Grasseschi, 776 P.2d 1136 (Colo. App. 1989).

Right to oppose petition. The requirement for notice and an opportunity to appear must be deemed to include the right to oppose a petition for an elective share. In re Estate of Abbott, 39 Colo. App. 536, 571 P.2d 311 (1977).

The plain language of subsection (5) does not require a surviving spouse to bring a separate action after contribution liability has been fixed under subsection (4). In re Estate of Beren, 2013 COA 166, 321 P.3d 615.

Sufficiency of notice of election. Under this section any written form of notice that accomplishes the purpose of informing those charged with the administration of the estate that the surviving spouse is dissatisfied with the will and is asserting statutory rights is sufficient. In re Stitzer's Estate, 103 Colo. 529, 87 P.2d 745 (1939).

Express election must be made. Husband who applied for probate of the will of his wife and insisted, during a long litigation, upon the jurisdiction of the district court will not be heard to afterwards question the probate, for the absence of an express election by him. Whipple v. Wessels, 66 Colo. 120, 180 P. 309 (1919).