Right of election personal to surviving spouse
- incapacitated surviving spouse
(1)Surviving spouse must be living at time of election.
(2)Incapacitated surviving spouse.
(a)Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need;
(b)During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust, but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination; and
(c)Upon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order:
(I)Under the residuary clause, if any, of the will of the predeceased spouse against whom the elective-share was taken, as if that predeceased spouse died immediately after the surviving spouse; or
(II)To that predeceased spouse’s heirs under section 15-11-711.
Section 15-11-212 — Right of election personal to surviving spouse - incapacitated surviving spouse,
https://leg.colorado.gov/sites/default/files/images/olls/crs2023-title-15.pdf (accessed Oct. 20, 2023).