Effective for Decedents Dying On Or After July 1, 1995

Share of spouse:
The following refers to surviving relatives. Descendants are children, grandchildren, etc. 

• If no descendant or parent - 100% 
• If descendants and all by this spouse - 100% 
• If no descendants, but parent - first $200,000.00, then 75%. 
• If descendants, but this spouse has descendants not by decedent [i.e., by a prior marriage or presumably outside of the marriage] - first $150,000.00, plus 50%. 
• If descendants not by spouse who are all adults - first $100,000.00, then 50%. 
• If descendants not by spouse, of which at least one is a minor [less than 18 years of age] - 50%. 

• If descendants - per capita at each generation 
• If no descendants - to parents, equally. 
• If no descendants or parent - to issue of parents per capita at each generation. 
• If no descendants or parent or issue of parents - to grandparents in equal shares 
• If no descendants or parent or issue of parents or grandparents - to issue of grandparents per capita at each generation - then, to: 
• Birth child [child born to, but adopted away] 
• Birth parent [parent born of, but adopted away]. 
• State of Colorado 

To What Property Do The Rules of Inheritance Apply ?

The inheritance rules apply only to "probate" property which is "inherited." "Probate" property is property which the decedent owned in his or her own name. It does not include property held in joint ownership, such as joint tenancy real property, bank accounts with P.O.D. or other survivor provisions, brokerage/mutual fund accounts which designate a beneficiary, life insurance or other death benefits payable to specific persons, or property held in trust. These kinds of "non-probate" property may become "probate" property, if the descendant's estate is named as the beneficiary, if no beneficiary is named, or the named-beneficiaries do not survive, or the property is not disposed of by Will or Trust.

Qualifications and Exceptions To General Rules

The exempt property allowance gives the first $15,000.00 to the spouse. [if no surviving spouse, then children under 21 or dependent upon the decedent receive]. The spouse and children share the next $12,000.00 pursuant to the family allowance. Then, administration costs, "burial" expenses, debts and taxes with federal preference, expenses of last illness, debts and taxes with Colorado preference, medicaid, and all other claims, in that order.

What Other Rules Help Determine Who Gets What ?

Anti-Lapse rule provides that a child will take the share of a parent who failed to survive. The anti-lapse statute applies to Wills and other governing instruments, but not to insurance or annuity policies or pension, profit sharing, retirement or similar benefit plans. 

120 hour survivorship rule now applies not only to intestacy, but also to governing instruments concerning joint ownership such as trusts, co-ownership, [unless specific language otherwise]. The 120 hour rule is not applicable to real property deeds or to governing instruments created before July 1, 1995. This means that to succeed to a joint tenancy interest in real property, one need only survive by one nanosecond. If there is no clear and convincing evidence of who died first, then the simultaneous death statute applies.
 

The simultaneous death statute explains how, when there is no clear and convincing evidence of the order of death, different kinds of property are to be divided. There are different provisions for real property, beneficiaries, community property, and life and accident insurance. The simultaneous death statute does not apply to Wills, living trusts, contracts of insurance, or any agreement which contains its own rules regarding presumptions of survivorship. If two people own real property by joint tenancy, application of the anti-lapse statute will treat them as co-tenants. This means that their respective interests in the real property will be distributed by Will, or if no Will, then by the Colorado Inheritance Rules. 

The augmented estate is the surviving spouse's statutory right not to be disinherited. The share required by law is a combination of the deceased spouse's estate and and survivor's estate vests from five to fifty percent over a 10 year schedule. Life insurance is not included.

THIS IS A SUMMARIZED STATEMENT OF GENERAL RULES. SEE YOUR ATTORNEY IF YOU HAVE A PARTICULAR QUESTION OR ISSUE.

Law Office Of
Larry A. Henning, P.C.
Attorneys and Counselors At Law