Colorado § 38-41-204 - Surviving spouse and minor children entitled.

§ 38-41-204. Surviving spouse and minor children entitled.

When any person dies seized of a homestead leaving a surviving spouse or minor children, such surviving spouse or minor children are entitled to the homestead exemption. In cases where there is neither surviving spouse nor minor children, the homestead shall be liable for the debts of the deceased.

Source: R.S. p. 385, § 60. G.L. § 1346. G.S. § 1634. R.S. 08: § 2953. C.L. § 5927. CSA: C. 93, § 26. CRS 53: § 77-3-4. C.R.S. 1963: § 77-3-4. L. 94: Entire section amended, p. 1041, § 20, effective July 1, 1995.

ANNOTATION

Law reviews. For article, "Executions and Levies on Tangible Property", see 27 Dicta 143 (1950). For note, "Colorado Homestead Now Assertable Against Heirs", see 25 Rocky Mt. L. Rev. 84 (1952). For note, "The Homestead Rights of Minor Children in Solvent Estates", see 25 Rocky Mt. L. Rev. 370 (1953). For article, "Family Protection Under the Uniform Probate Code", see 50 Den. L.J. 137 (1973). For article, "Homestead and Bankruptcy in Colorado and Elsewhere", see 56 U. Colo. L. Rev. 175 (1985). For article, "Colorado Homestead Statutes: Exemption or Allowance?", see 17 Colo. Law. 827 (1988). For article, "The Surviving Spouse Elective Share and the Augmented Estate", see 17 Colo. Law. 1985 (1988).

This section should be given a liberal construction, to the end that its purposes will be fulfilled. Chapin Lumber Co. v. Day, 106 Colo. 194, 103 P.2d 14 (1940).

Construction of section. The proper construction of this section is that where a husband and wife occupy a homestead, the death of either does not destroy the homestead right so long as the survivor shall reside upon the property. Chapin Lumber Co. v. Day, 106 Colo. 194, 103 P.2d 14 (1940).

"Seized" construed. "Seized", as used in this section, must be taken to mean simply the right of possession which inheres in both husband and wife in a homestead. It has no reference to which spouse has the title to the land. Chapin Lumber Co. v. Day, 106 Colo. 194, 103 P.2d 14 (1940).

"Or" construed. Where the General Assembly used the word "or" immediately preceding both occurrences of the phrase "minor children", the intent was to be inclusive. In re Estate of Dodge, 685 P.2d 260 (Colo. App. 1984).

Homestead right not governed by descent and distribution. A homestead right is not governed by the law of descent and distribution, and it is not a part of an estate, but insofar as it may appear in the administration of an estate, it is more in the nature of a lien that has attached to the home property, and the heir or devisee who succeeds to the title of the home property takes it subject to that limitation or qualification. In re Wallace's Estate, 125 Colo. 584, 246 P.2d 894 (1952).

Estate has no interest in exemption of surviving spouse. The estate of a deceased person has no interest in the homestead exemption of a surviving husband or wife. Union Nat'l Bank v. Wright, 78 Colo. 346, 242 P. 54 (1925); In re Wallace's Estate, 125 Colo. 584, 246 P.2d 894 (1952).

Rights of survivors unaffected. The rights of a surviving widow or husband or minor children of a person, who dies seized of a homestead, are not enlarged or diminished merely by the fact of such death. Union Nat'l Bank v. Wright, 78 Colo. 346, 242 P. 54 (1925).

Homestead interest terminated when owner died and left her house to her adult child. The adult child could no longer claim the homestead exemption, and the deceased owner's creditors were permitted to obtain a writ of execution authorizing the sale of the house to collect the debt owed. Welcome to Realty, LLC 401K PSP v. Wilson, 2024 COA 122, 564 P.3d 658.

Payment of surviving spouse in lieu of homestead right. Where it became necessary to sell real property of an estate, covered by a homestead, to pay debts, an order of court directing the sale and requiring that $2,000 be retained out of the proceeds to be paid the surviving husband in lieu of his homestead right in the property, was approved. Union Nat'l Bank v. Wright, 78 Colo. 346, 242 P. 54 (1925).

Applied in In re Boddy, 593 B.R. 643 (Bankr. D. Colo. 2018).