Will Anti-Lapse and Substitute Gifts in Colorado

At a glance

Requirements one by one

Which wills and recipients qualify

Under § 15-11-601, the construction rules in § 15-11-603 and § 15-11-604 apply to a will or codicil executed, republished, or reaffirmed on or after July 1, 1995. Earlier instruments that were not republished or reaffirmed use the specified prior law. For a covered devise under § 15-11-603(2), the deceased devisee must be a grandparent or descendant of a grandparent of the testator, or of the donor of a power exercised by the will. Section 15-11-603(1)(d) includes a devisee already dead when the will was signed and counts the beneficiary, rather than the trustee, for a will gift to a trust.

Survival and substitute shares

Under § 15-11-603(2)(a), the law sends a qualifying individual gift to the deceased devisee's surviving descendants per capita at each generation. Section 15-11-603(1)(f) excludes a person deemed to have predeceased under § 15-11-702. Under § 15-11-702(1), the law ordinarily demands clear and convincing evidence of 120-hour survival, with express exceptions for relevant simultaneous-death terms or a different stated period.

Class gifts, alternatives and failed shares

Under § 15-11-603(2)(b), a qualifying deceased member of a class can be replaced by surviving descendants. The rule expressly excepts class gifts labeled “issue,” “descendants,” “heirs,” “relatives,” “family,” and similar terms. Under § 15-11-603(2)(d), an expressly designated alternative devisee supersedes the substitute gift only if that devisee is entitled to take. When multiple substitute gifts remain, subsection (4) normally gives the primary gift priority but selects a qualifying younger-generation substitute gift when present.

Under § 15-11-604(1), the law sends an otherwise failed nonresiduary devise into the residue. For a residue left to multiple people, a failed share goes proportionately to the other residuary devisees, subject to substitution under § 15-11-603.

Trust and nonprobate provisions

The separate § 15-11-707(1)(f), (2)(a) rule concerns a future interest under a trust that fails at its distribution date; its quoted individual-interest clause creates a gift for surviving descendants. Under § 15-11-706(2), the law addresses a deceased beneficiary under certain nonprobate designations while § 15-11-706(1) expressly excludes wills, beneficiary deeds, insurance, annuities, retirement plans and vehicle-title transfers from that section.

What trips people up

Under § 15-11-603(2)(c), words like “if he survives me” or “my surviving children,” without more, do not by themselves defeat substitution. Explicit words that the gift shall lapse or shall not pass to descendants can. A testamentary appointee's descendants may substitute even if they were not objects of the power, unless the power's terms expressly exclude that substitution (§ 15-11-603(2)(e)). The anti-lapse section also excludes separate-writing dispositions of tangible personal property under § 15-11-603(3).

Common questions

Does an ordinary residuary clause count as a named backup gift? Under § 15-11-603(1)(a), only when the will specifically directs failed nonresiduary devises into that clause.

Can a class member who died before signing be considered? Section 15-11-603(1)(d) includes a class member deceased when the testator executed the will; the class and survival conditions still apply.

Statutes and sources

• Colo. Rev. Stat. §§ 15-11-601, 15-11-603, 15-11-604, 15-11-702, 15-11-706 and 15-11-707. The source fields above contain verbatim official excerpts, the current title URL and access dates.