Colorado § 15-11-404 - Family allowance.

§ 15-11-404. Family allowance.

(1) In addition to the right to exempt property, the decedent's surviving spouse and minor children who the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children or persons having the children's care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child's guardian or other person having the child's care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except claims for the costs and expenses of administration and reasonable final disposition and funeral expenses, which shall be paid in the priority and manner set forth in section 15-12-805.

(2) The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective-share. The death of any person entitled to a family allowance terminates the right to receive an allowance for any period arising after his or her death, but does not affect the right of his or her estate to recover the unpaid allowance for periods prior to his or her death.

Source: L. 94: Entire part R&RE, p. 996, § 3, effective July 1, 1995. L. 2021: (1) amended, (SB 21-006), ch. 123, p. 492, § 13, effective September 7.

Editor's note: This section is similar to former § 15-11-403 as it existed prior to 1995.

ANNOTATION

Law reviews. For article, "The Widow's Allowance", see 6 Dicta 11 (Apr. 1929). For article, "Widow's Allowance", see 25 Dicta 240 (1948). For article, "A Decade of Colorado Law: Conflict of Laws, Security, Contracts and Equity", see 23 Rocky Mt. L. Rev. 247 (1951). 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. The following annotations include cases decided under former provisions similar to this section.

Section 15-11-403 and this section to be read with § 15-11-202 (1). Section 15-11-403 and this section, 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); In re Estate of Dowdy, 2021 COA 136, 503 P.3d 906.

This section is based upon sound public policy which the courts are zealous to effectuate. In re Bradley's Estate, 106 Colo. 500, 106 P.2d 1063 (1940); Lyons v. Egan, 107 Colo. 32, 108 P.2d 873 (1940).

The purpose of this section is to secure support to the widow and children during the period of administration, and the prolonged litigation which sometimes ensues. Wilson v. Wilson, 55 Colo. 70, 132 P. 67 (1913); In re Bradley's Estate, 106 Colo. 500, 106 P.2d 1063 (1940); Lyons v. Egan, 107 Colo. 32, 108 P.2d 873 (1940).

The policy of providing a widow's allowance is to protect the surviving spouse during the period until a final distribution of the estate can be made. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

This section identifies three distinct groups of survivors who are entitled to a family allowance: (1) the decedent's surviving spouse; (2) the minor children who the decedent was obligated to support; and (3) any children who were in fact being supported by the decedent, including adult dependent children. In re Estate of Dowdy, 2021 COA 136, 503 P.3d 906.

A surviving spouse is entitled to a family allowance under this section even if there are no minor or dependent children. In re Estate of Dowdy, 2021 COA 136, 503 P.3d 906.

Rights in general. A widow may claim her allowance or waive it. She may take specific items or cash. Until her position is made known, or her right is terminated by limitation, property of the estate cannot be disposed of and claims against it can often not be settled. Wigington v. Wigington, 112 Colo. 78, 145 P.2d 980 (1944).

A claim for a widow's allowance is a claim against the estate of her deceased husband. Hale v. Burford, 73 Colo. 197, 214 P. 543 (1923); Brimble v. Sickler, 83 Colo. 494, 266 P. 497 (1928); In re Williams' Estate, 101 Colo. 262, 72 P.2d 476 (1937); In re Elam's Estate, 104 Colo. 126, 89 P.2d 243 (1939).

The allowance is a part of the expense of the administration of an estate. Deeble v. Alerton, 58 Colo. 166, 143 P. 1096 (1914); Hale v. Burford, 73 Colo. 197, 214 P. 543 (1923); Ahlf v. King, 88 Colo. 425, 298 P. 647 (1931).

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).

Factors set forth for consideration as to whether family allowance should be extended and in what amount. In re Estate of Dandrea, 40 Colo. App. 547, 577 P.2d 1112 (1978).

When ordered paid, an allowance is not in custodia legis. Isbell-Kent-Oakes Dry Goods Co. v. Larimer County Bank & Trust Co., 75 Colo. 451, 226 P. 293 (1924).

The allowance is subject to garnishment under C.R.C.P. 103. Whatever the public policy may be as to garnishment of a widow's allowance, these sections control. Policy in such a case is for the consideration of the general assembly and not the courts. Isbell-Kent-Oakes Dry Goods Co. v. Larimer County Bank & Trust Co., 75 Colo. 451, 226 P. 293 (1924); Brimble v. Sickler, 83 Colo. 494, 266 P. 497 (1928).

The allowance is given independent of her distributive share in her husband's estate. Wilson v. Wilson, 55 Colo. 70, 132 P. 67 (1913).

The basic reason for a surviving spouse's allowance is that it is the duty of the husband to support her. Brimble v. Sickler, 83 Colo. 494, 266 P. 497 (1928); In re Williams' Estate, 101 Colo. 262, 72 P.2d 476 (1937).

There is no statutory allowance to a widow other than a widow's allowance. Vincent v. Martin, 91 Colo. 106, 11 P.2d 1089 (1932); Moher v. Knauss, 150 Colo. 108, 370 P.2d 1017 (1962).

A widow's allowance is controlled by the law of the decedent's domicile. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

Colorado need not be domiciliary state. Under this statute there is no requirement that the surviving spouse be a resident of this state or that this state be the domiciliary state. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

There is no statutory bar to filing for a widow's allowance in Colorado, where Colorado is the ancillary jurisdiction. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

Where the assets of the domiciliary estate have been insufficient to satisfy a widow's allowance awarded in the domiciliary proceeding, the spouse is entitled to satisfaction of the domiciliary allowance from the assets in the ancillary estate. In re Estate of Plazza, 34 Colo. App. 296, 526 P.2d 155 (1974).

When allowance is vested. The remarriage of a widow does not divest her or her minor children of an allowance already vested before her remarriage. A surviving spouse's allowance is vested when the court enters an order approving the estimate of the appraisers and setting aside specific articles of property to her. Hale v. Burford, 73 Colo. 197, 214 P. 543 (1923).

Widow entitled to allowance regardless of election. The fact that a widow accepted her widow's allowance held of no significance one way or the other in determining whether or not there had been an election under § 15-11-201, for she was entitled to such allowance whether she intended to claim under the statute or under the will. Hodgkins v. Ashby, 56 Colo. 553, 139 P. 538 (1914).

Allowance protected against liability of husband. The last sentence of subsection (1) is a declaration of the legislative policy that the allowance should be protected against any indebtedness or liability of the husband. In re Bradley's Estate, 106 Colo. 500, 106 P.2d 1063 (1940).

Where allowance satisfied. Where a widow is the sole heir of her deceased husband and receives his entire net estate, amounting to more than $2,000, it is immaterial whether she receives the amount to which she is entitled as a widow's allowance as such, or as a part of the estate, and in such circumstances where "other estate of the deceased" is discovered after final settlement and discharge of the widow as administratrix, and which was not inventoried or accounted for, as between the widow and a creditor whose claim had not been theretofore presented for allowance, the latter is entitled to the proceeds of the newly discovered estate in preference to the former's demand for a widow's allowance therefrom. Ahlf v. King, 88 Colo. 425, 298 P. 647 (1931).

An apportionment of the family allowance between a surviving spouse and a minor child will not be disturbed on review where there is evidence on the record to support it. In re Estate of Frazier, 30 Colo. App. 458, 494 P.2d 845 (1972).

Under this section, the court acting in probate may apportion the award of the family allowance between a surviving spouse and dependent children not living with the surviving spouse, as their needs may appear. In re Meek, 669 P.2d 628 (Colo. App. 1983).

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