Colorado § 15-11-302 - Omitted children.

§ 15-11-302. Omitted children.

(1) Except as provided in subsection (2) of this section, if a testator becomes a parent to a child after the execution of the testator's will and fails to provide in the will for the child, the omitted child receives a share in the estate as follows:

(a) If the testator had no child living when the testator executed the will, the omitted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to another parent of the omitted child and that other parent survives the testator and is entitled to take under the will.

(b) If the testator had one or more children living when the testator executed the will, and the will devised property or an interest in property to one or more of the then living children, the omitted child is entitled to share in the testator's estate as follows:

(I) The portion of the testator's estate in which the omitted child is entitled to share is limited to devises made to the testator's then living children under the will.

(II) The omitted child is entitled to receive the share of the testator's estate, as limited in subsection (1)(b)(I) of this section, that the child would have received had the testator included all omitted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

(III) To the extent feasible, the interest granted the omitted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator's then living children under the will.

(IV) In the satisfaction of a share provided by this subsection (1)(b), devises to the testator's children who were living when the will was executed abate ratably. In abating the devises of the then living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

(2) Neither subsection (1)(a) of this section nor subsection (1)(b) of this section applies if:

(a) It appears from the will that the omission was intentional; or

(b) The testator provided for the omitted child 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.

(3) If at the time of execution of the will the testator fails to provide in the will for a living child solely because the testator believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted child.

(4) In the satisfaction of a share provided by subsection (1)(a) of this section, devises made by the will abate under section 15-12-902.

Source: L. 94: Entire part R&RE, p. 993, § 3, effective July 1, 1995. L. 2022: (1), (2) introductory portion, (2)(b), (3), and (4) amended, (SB 22-092), ch. 60, p. 276, § 9, effective August 10.

Editor's note: This section is similar to former § 15-11-302 as it existed prior to 1995.

ANNOTATION

Law reviews. For article, "The Adoptee Trap, the Accidental Beneficiary, and the Rational Testator", see 42 Colo. Law. 29 (Feb. 2013).

Posthumous child takes as though testator had died intestate. Testator leaving a widow and one child devises all his estate to his widow, not expressing any intention to disinherit an after-born child. The posthumous child takes one-fourth of the lands whereof the testator died seized, which is the interest the minor would have inherited had her father died intestate. Lowrey v. Harlow, 22 Colo. App. 73, 123 P. 143 (1912) (decided under repealed laws antecedent to repealed CSA, C. 176, § 41).

PART 4

EXEMPT PROPERTY AND ALLOWANCES

Cross references: For clarification of the term "surviving spouse", see § 15-11-802.

Law reviews: For article, "Estate Planning Tools for Second Marriages", see 45 Colo. Law. 45 (Dec. 2016).