Spousal Elective Share Requirements in Colorado

At a glance

Requirements one by one

Governing law and system

Colorado uses a four-component augmented estate under §§ 15-11-201 through 15-11-214. The statute then applies a marriage-duration percentage to produce the marital-property portion and awards 50% of that portion. A separate supplemental amount protects against a low result.

Eligible spouse and who may elect

The ordinary right belongs to the surviving spouse of a decedent domiciled in Colorado. Section 15-11-702 generally requires survival by 120 hours. Under § 15-11-802, divorce or annulment ends surviving-spouse status; a separation decree that does not terminate marriage is not a divorce, but a valid order terminating all marital-property rights also excludes the claimant.

The spouse must be living when the petition is filed. Section 15-11-212 allows a conservator, guardian, or power-of-attorney agent to act. If an election is made for an incapacitated spouse, the court places the probate/recipient-funded portion in a support trust.

Share amount and marriage length

The headline amount is 50% of the marital-property portion, not 50% of the entire augmented estate. Section 15-11-203 sets the portion at supplemental- amount-only before the first anniversary, then 10% after one year and another 10 percentage points for each completed year until it reaches 100% at ten years.

Section 15-11-202 also supplies a supplemental amount based on a $50,000 statutory figure, reduced by listed spouse resources and adjusted for cost of living under § 15-10-112.

Estate base and nonprobate transfers

Under §§ 15-11-204 through 15-11-207, the four components are the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the spouse, and the spouse's own property and nonprobate transfers to others.

The nonprobate rules reach listed general powers, joint-survivorship property, POD and TOD accounts, retained-possession or retained-income transfers, certain insurance, and transfers within two years before death. Section 15-11-207 also brings the spouse's ownership and mirrored transfers into the calculation.

Deductions, exclusions, and valuation

The probate component is reduced by funeral and administration expenses, family allowance, exempt property, and enforceable claims. Under § 15-11-208, also excludes adequately compensated transfers, transfers joined in or consented to in writing by the spouse, bona fide purchaser transfers, specified insurance and benefit plans, completed pre-July 1974 transfers, and certain joint interests created by a third party.

Enforceable claims reduce the applicable nonprobate categories. Present and future interests are commuted, overlapping inclusions use only the highest- value route, and community-property ownership controls over inconsistent title.

Deadline, extensions, and withdrawal

The ordinary petition deadline is the later of nine months after death or six months after probate of the will. But § 15-11-211 contains a second trap: an election filed after nine months excludes the decedent's nonprobate transfers to others unless the spouse filed an extension petition within nine months and the court granted it.

The spouse may withdraw before final court determination, but must give written withdrawal notice to estate interests and adversely affected distributees and augmented-estate recipients.

Filing, service, and court procedure

The spouse files a court petition and mails or delivers it to the personal representative, if any. Written hearing notice goes to persons interested in the estate and to distributees and recipients whose interests would be adversely affected. After notice and hearing, the court determines both the elective and supplemental amounts and orders payment or contribution.

Waiver and agreement requirements

For a waiver made on or after July 1, 2014, § 15-11-213 requires an enforceable premarital or marital agreement under Colorado's Uniform Premarital and Marital Agreements Act. The agreement must be a record signed by both parties.

Enforcement also requires voluntary consent, access to independent legal representation, adequate financial disclosure or knowledge, and—for an unrepresented signer—a conspicuous waiver notice or plain-language explanation of the rights being changed.

Payment sources and recipient liability

Section 15-11-209 credits probate property passing to the spouse by will or intestacy, nonprobate property passing from the decedent to the spouse, and the marital-property portion of the spouse's own included property. The next tier charges remaining probate property and specified two-year transfers proportionally; remaining nonprobate transfers follow.

Original nonprobate recipients and donees who still hold the property or its proceeds can owe contribution. A liable person may return the proportional property or pay its value, while a bona fide purchaser is protected.

Since August 12, 2026, § 15-15-104(3)-(4) requires a charitable organization that received designated death benefits and later receives personal- representative notice of an unsatisfied elective-share claim to hold the needed amount in constructive trust. If the charity is liable, it must return the needed benefits within 60 days after written notice; statutory interest and other remedies can follow noncompliance.

Effect of election and other spousal rights

Colorado does not treat the election as a blanket renunciation of the will. Instead, property passing to the spouse by will or intestacy is credited toward the elective amount under § 15-11-209. Exempt property and family allowance, if available, are additional and are not charged against the elective or supplemental amounts.

What trips people up

• The effective fraction is marriage-scaled twice. The statute first scales the augmented estate to a marital-property portion, then awards 50% of that portion.
• The later deadline does not automatically preserve nonprobate reach. An election after month nine needs a timely extension petition and court grant to keep decedent-to-others nonprobate transfers in the base.
• Will gifts are credits, not automatically renounced. Treating the election as “in lieu of” every will provision conflicts with the statutory payment sequence.
• The waiver statute changed in 2014. Current waivers route through the UPMAA safeguards, not a generic one-signature writing.

Common questions

Is the share 50% after one year of marriage?

No. After one year the marital-property portion is 10% of the augmented estate, and the elective share is 50% of that portion—an effective 5% before credits and any supplemental amount.

What if the will was probated more than nine months after death?

The six-month-after-probate clock may make the petition timely, but nonprobate transfers to others are excluded unless the spouse timely sought and obtained the special extension described in § 15-11-211(2)–(3).

Can a guardian elect for an incapacitated spouse?

Yes. The court must place the portion funded by the probate estate and affected nonprobate recipients in a trust administered for the spouse's support.

Statutes and sources

• C.R.S. §§ 15-11-202 through 15-11-208; § 15-10-112 — share, supplemental amount, marriage scale, augmented-estate components, deductions, exclusions, and valuation. Official Title 15 (accessed 2026-08-15).
• C.R.S. §§ 15-11-209 through 15-11-212 — credits, contribution order, recipient liability, deadline, notice, withdrawal, and representative election. Official Title 15 (accessed 2026-08-15).
• C.R.S. § 15-11-213; §§ 14-2-306 and 14-2-309 — post-2014 waiver and UPMAA formation/enforcement safeguards. Official Title 15 and official Title 14 (accessed 2026-08-15).
• C.R.S. §§ 15-11-702 and 15-11-802 — 120-hour survival and surviving- spouse exclusions. Official Title 15 (accessed 2026-08-15).
• C.R.S. § 15-15-104; 2026 Colo. Sess. Laws ch. 52 — current charitable-recipient hold, return, interest, and remedy duties. Official signed act (accessed 2026-08-15).