Colorado § 15-11-403 - Exempt property.

§ 15-11-403. Exempt property.

(1) (a) Prior to January 1, 2012, the decedent's surviving spouse is entitled to exempt property from the estate in the form of cash in the amount of or other property of the estate in the value of twenty-six thousand dollars in excess of any security interests therein. If there is no surviving spouse, the decedent's dependent children are entitled jointly to the same exempt property. Rights to exempt property have priority over all claims against the estate, except claims for the costs and expenses of administration, and reasonable funeral and burial, interment, or cremation expenses, which shall be paid in the priority and manner set forth in section 15-12-805. The right to exempt property shall abate as necessary to permit payment of the family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or dependent children by the decedent's will, unless otherwise provided, by intestate succession, or by way of elective-share.

(b) On and after January 1, 2012, the decedent's surviving spouse is entitled to exempt property from the estate in the form of cash in the amount of or other property of the estate in the value of thirty thousand dollars in excess of any security interests therein. If there is no surviving spouse, the decedent's dependent children are entitled jointly to the same exempt property. Rights to exempt property have priority over all claims against the estate, except claims for the costs and expenses of administration and reasonable final disposition and funeral expenses, which are paid in the priority and manner set forth in section 15-12-805. The right to exempt property abates as necessary to permit payment of the family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or dependent children by the decedent's will, unless otherwise provided, by intestate succession or by way of elective-share.

(2) The dollar amount stated in paragraph (a) or (b) of subsection (1) of this section shall be increased or decreased based on the cost of living adjustment as calculated and specified in section 15-10-112; except that, when the increase in the dollar amount stated in paragraph (b) of subsection (1) of this section, as enacted in Senate Bill 11-016, enacted in 2011, takes effect, the next regularly scheduled cost of living adjustment will be suspended for one year.

Source: L. 94: Entire part R&RE, p. 995, § 3, effective July 1, 1995. L. 96: Entire section amended, p. 657, § 6, effective July 1. L. 2002: Entire section amended, p. 652, § 5, effective July 1. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1682, § 10, effective July 1, 2010. L. 2011: Entire section amended, (SB 11-016), ch. 77, p. 211, § 1, effective August 10. L. 2021: (1)(b) amended, (SB 21-006), ch. 123, p. 492, § 12, effective September 7.

Editor's note: This section is similar to former § 15-11-402 as it existed prior to 1995.

Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101.

COMMENT

As originally adopted in 1969, the dollar amount exempted was set at $3,500. To adjust for inflation, the amount was increased to $10,000 in 1990 and to $15,000 in 2008. The dollar amount in this section is subject to annual cost-of-living adjustments under Section 1-109.

Unlike the exempt amount described in Sections 2-402 and 2-404, the exempt amount described in this section is available in a case in which the decedent left no spouse but left only adult children. The provision in this section that establishes priorities is required because of possible difference between beneficiaries of the exemptions described in this section and those described in Sections 2-402 and 2-404.

Section 2-204 covers waiver of exempt property rights. This section indicates that a decedent's will may put a spouse to an election with reference to exemptions, but that no election is presumed to be required.

Historical Note. This Comment was revised in 2008.

ANNOTATION

Law reviews. For article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987). For article, "Ownership of Personal Property Accumulated During a Marriage", see 17 Colo. Law. 623 (1988). For article, "Avoiding Litigation in Probate Estates", see 18 Colo. Law. 875 (1989). For article, "Divorce Considerations Relevant to an Estate Planning Practice", see 29 Colo. Law. 53 (Feb. 2000). For article, "JDF 999 Collection of Personal Property by Affidavit Pursuant to CRS §§ 15-12-1201 and -1202", see 42 Colo. Law. 49 (June 2013).

Annotator's note. Since § 15-11-403 is similar to §§ 15-11-402 and 15-11-405 as they existed prior to the 1994 repeal and reenactment of this entire part, relevant cases construing those provisions have been included in this section. For additional cases, see the annotations under former §§ 15-11-402 and 15-11-405 in the 1987 replacement volume.

The general assembly did not intend to limit claims for exempt property to living persons; rather, it only intended to limit the claim to spouses who survive the decedent by five or more days. The right to an exempt property allowance that automatically vested in a surviving spouse after she survived her husband by more than one hundred twenty hours therefore rightfully passed to her estate following her death ten months later. Foiles v. Whittman, 233 P.3d 697 (Colo. 2010).

This section and § 15-11-404 to be read with § 15-11-202 (1). This section and § 15-11-404, providing for family and exempt property allowances, must be read in conjunction with the definition of "augmented estate" in § 15-11-202 (1) to determine whether distributing such allowances from the "augmented estate" is consistent and harmonious with the creation of an "augmented estate" under the statute. In re Estate of Novitt, 37 Colo. App. 524, 549 P.2d 805 (1976).

Allowances to be claimed from probate estate. The language of § 15-11-202 (1) clearly reflects a legislative intent to establish the family allowance and exempt property allowance as items to be claimed from the probate estate, if any, to which are then added certain items to create the augmented estate. In re Estate of Novitt, 37 Colo. App. 524, 549 P.2d 805 (1976).

Medical services reimbursement funds not recoverable by treating physicians. Medical services reimbursement funds received by the personal representative are a part of the surviving spouse's exempt property allowance when there exists no basis to impress a constructive trust on such funds. The legislature in enacting this section clearly intended that a surviving spouse's exempt property allowance have priority over all claims against the state. Timothy C. Wirt, M.D., P.C. v. Prout, 754 P.2d 429 (Colo. App. 1988).

Exempt property claim automatically vested in decedent's wife when she survived him and it passed to the estate following her subsequent death. In re Estate of Whittman, 220 P.3d 961 (Colo. App. 2009), aff'd, 233 P.3d 697 (Colo. 2010).

Applied in Lopata v. Metzel, 641 P.2d 952 (Colo. 1982); In re Estate of Smith, 674 P.2d 972 (Colo. App. 1983).