Colorado § 15-11-301 - Entitlement of spouse; premarital will.

§ 15-11-301. Entitlement of spouse; premarital will.

(1) If a testator's surviving spouse married the testator after the testator executed his or her will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he or she would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised outright to nor in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is so devised to a descendant of such a child, or passes under section 15-11-603 or 15-11-604 to such a child or to a descendant of such a child, unless:

(a) It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse;

(b) The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or

(c) The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

(2) In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises, other than a devise outright to or in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under section 15-11-603 or 15-11-604 to a descendant of such a child, abate as provided in section 15-12-902.

Source: L. 94: Entire part R&RE, p. 993, § 3, effective July 1, 1995.

Editor's note: This section is similar to former § 15-11-301 as it existed prior to 1995.

ANNOTATION

Law reviews. For article, "Divorce Considerations Relevant to an Estate Planning Practice", see 29 Colo. Law. 53 (Feb. 2000). For article, "Omitted Spouse: Avoiding Questions of Intent After Death", see 52 Colo. Law. 46 (Jan.-Feb. 2023).

To determine whether an omitted spouse is entitled to an intestate share of an estate when a proponent of the will argues the exception under subsection (1)(c) applies, a court should examine the transfer in light of the following factors, to the extent they are addressed by the evidence: (1) the alternative takers under the will; (2) the dollar value of the testamentary gift to the surviving spouse; (3) the fraction of the estate represented by that gift; (4) whether comparable gifts were made to other persons; (5) the length of time between execution of the testamentary instrument and the marriage; (6) the duration of the marriage; (7) any inter vivos gifts the testator has made to the surviving spouse; (8) the separate property and needs of the surviving spouse; (9) a failure by the testator to provide for a surviving spouse in any capacity; and (10) the amount of the transfer in isolation or in relation to the total net probate estate. In re Estate of King, 2019 COA 82, 444 P.3d 863.

Applying subsection (1)(c), the court properly inferred decedent's intent to provide for surviving spouse outside of will, where decedent left surviving spouse significant life insurance benefits ratified after marriage, bank account assets, and retirement account assets, and did not amend his will after marriage despite having amended the will several times before marriage. In re Estate of King, 2019 COA 82, 444 P.3d 863.