Omitted or Pretermitted Children Under Wills in Colorado
At a glance
| Will and child covered | Child becoming testator's child after will; also living child mistakenly believed dead (§ 15-11-302(1), (3)). |
|---|---|
| Birth or adoption timing | Parenthood arises after will execution; living child believed dead at execution has separate route (§ 15-11-302(1), (3)). |
| Naming and provision test | Will fails to provide for later child; living-child route requires omission solely from mistaken belief of death (§ 15-11-302(1), (3)). |
| Intentional omission | No later-child share if intentional omission appears from the will (§ 15-11-302(2)(a)). |
| Other-parent gifts | No-child-at-execution share excluded if substantially all estate goes to other parent, who survives and can take (§ 15-11-302(1)(a)). |
| Outside gifts and advancements | Outside transfer defeats share if intended in lieu of will gift; intent shown by statements or inferred (§ 15-11-302(2)(b)). |
| Baseline statutory share | No living child at execution: intestate-equivalent value; existing-child devise route uses equal share of those devises (§ 15-11-302(1)(a)–(b)). |
| Effect of gifts to existing children | Later child shares only devises to children living at execution; count all omitted children equally (§ 15-11-302(1)(b)(I)–(II)). |
| Property source and abatement | Existing-child devises abate ratably; no-child route follows statutory abatement order (§§ 15-11-302(1)(b)(IV), (4), 15-12-902). |
| Trust and nonprobate reach | Outside transfer can defeat claim; omitted child's share matches equitable/legal, present/future child devise where feasible (§ 15-11-302(2)(b), (1)(b)(III)). |
Requirements one by one
Which child qualifies
Section 15-11-302(1) covers a person who becomes the testator's child after execution when the will does not provide for that child. Subsection (3) also protects a child living at execution who was left out solely because the testator believed the child was dead. The statute uses that mistaken-death fact as the route for an already living child.
How the share is calculated
When no child was living at execution, § 15-11-302(1)(a) gives the omitted child the value of an intestate share. When living children received will devises, subsection (1)(b) instead confines the pool to those children's devises and treats all omitted children as included for equal division. The omitted child's interest must match the existing children's equitable or legal, present or future interests as far as feasible.
Which gifts are reduced
Under § 15-11-302(1)(b)(IV), devises to the children living at execution abate ratably, with the court preserving the testamentary plan as far as possible. For the intestate-value route, subsection (4) invokes § 15-12-902(1): undisposed property, residue, general devises, and specific devises, in that order, subject to the will's expressed order or a defeated express purpose.
What trips people up
The other-parent exception in § 15-11-302(1)(a) applies only when all or substantially all of the estate was devised to or for that parent, who must survive and be entitled to take. Under § 15-11-302(2), an outside transfer defeats a later child's claim only when it was meant to stand in place of a will provision; the testator's statements or other evidence must support that intent.
Common questions
Can a statement outside the will prove intentional omission? Section 15-11-302(2)(a) specifies that intentional omission must appear from the will. The separate outside-transfer exception allows other evidence of intent under subsection (2)(b).
What if the will gave nothing to children who were living when it was signed? The equalized child-devise route requires a devise to at least one then-living child under § 15-11-302(1)(b). That route does not supply a pool without such a devise.
Statutes and sources
- Colo. Rev. Stat. §§ 15-11-302 and 15-12-902. Verbatim current text, the official Title 15 URL, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Colorado law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Colorado law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace