C.R.S. Section 15-11-212
Right of election personal to surviving spouse

  • incapacitated surviving spouse

(1)

Surviving spouse must be living at time of election.
The right of election may be exercised only by a surviving spouse who is living when the petition for the elective-share is filed in the court under section 15-11-211. If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse’s behalf by his or her conservator, guardian, or agent under the authority of a power of attorney.

(2)

Incapacitated surviving spouse.
If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court must set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others under section 15-11-209 (1) and (3) and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection (2), an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms and such additional terms as the court determines appropriate:

(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.

Source: Section 15-11-212 — Right of election personal to surviving spouse - incapacitated surviving spouse, (accessed Dec. 24, 2024).

15‑11‑101
Intestate estate 15‑11‑102
Share of spouse 15‑11‑102.5
Share of designated beneficiary 15‑11‑103
Share of heirs other than surviving spouse and designated beneficiary - definitions 15‑11‑104
Requirement of survival by one hundred twenty hours - individual gestation 15‑11‑105
No taker 15‑11‑106
Per capita at each generation 15‑11‑107
Inheritance without regard to number of common ancestors in same generation 15‑11‑109
Advancements 15‑11‑110
Debts to decedent 15‑11‑111
Alienage 15‑11‑112
Dower and courtesy abolished 15‑11‑113
Individual related to decedent through more than one line of relationship 15‑11‑114
Parent barred from inheriting in certain circumstances 15‑11‑115
Definitions 15‑11‑116
Effect of parent-child relationship 15‑11‑117
No distinction based on marital status 15‑11‑118
Adoptee and adoptee’s adoptive parent or parents 15‑11‑119
Adoptee and adoptee’s genetic parents 15‑11‑120
Child conceived by assisted reproduction other than child born to gestational carrier 15‑11‑121
Child born to gestational carrier 15‑11‑122
Equitable adoption 15‑11‑201
Definitions 15‑11‑202
Elective-share 15‑11‑203
Composition of the marital-property portion of the augmented estate 15‑11‑204
Decedent’s net probate estate 15‑11‑205
Decedent’s nonprobate transfers to others 15‑11‑206
Decedent’s nonprobate transfers to the surviving spouse 15‑11‑207
Surviving spouse’s property and nonprobate transfers to others 15‑11‑208
Exclusions, valuations, and overlapping application 15‑11‑209
Sources from which elective-share payable 15‑11‑210
Personal liability of recipients 15‑11‑211
Proceeding for elective-share - time limit 15‑11‑212
Right of election personal to surviving spouse - incapacitated surviving spouse 15‑11‑213
Waiver of right to elect and of other rights 15‑11‑214
Protection of payers and other third parties 15‑11‑301
Entitlement of spouse 15‑11‑302
Omitted children 15‑11‑401
Applicable law 15‑11‑402
Homestead 15‑11‑403
Exempt property 15‑11‑404
Family allowance 15‑11‑405
Source, determination, and documentation 15‑11‑501
Who may make a will 15‑11‑502
Execution - witnessed or notarized wills - holographic wills 15‑11‑503
Writings intended as wills 15‑11‑504
Self-proved will 15‑11‑505
Who may witness 15‑11‑506
Choice of law as to execution 15‑11‑507
Revocation by writing or by act 15‑11‑508
Revocation by change of circumstances 15‑11‑509
Revival of revoked will 15‑11‑510
Incorporation by reference 15‑11‑511
Testamentary additions to trusts 15‑11‑512
Events of independent significance 15‑11‑513
Separate writing or memorandum identifying devise of certain types of tangible personal property 15‑11‑514
Contracts concerning succession 15‑11‑515
Deposit of will with court in testator’s lifetime 15‑11‑516
Duty of custodian of will 15‑11‑517
Penalty clause for contest 15‑11‑601
Scope 15‑11‑602
Will may pass all property and after-acquired property 15‑11‑603
Antilapse 15‑11‑604
Failure of testamentary provision 15‑11‑605
Increase in securities 15‑11‑606
Nonademption of specified devises - unpaid proceeds of sale, condemnation, or insurance - sale by conservator or agent 15‑11‑607
Nonexoneration 15‑11‑609
Ademption by satisfaction 15‑11‑701
Scope 15‑11‑702
Requirement of survival by one hundred twenty hours 15‑11‑703
Choice of law as to meaning and effect of governing instrument 15‑11‑705
Class gifts construed to accord with intestate succession 15‑11‑706
Nonprobate transfers - deceased beneficiary 15‑11‑707
Survivorship with respect to future interests under terms of trust 15‑11‑708
Class gifts to “descendants”, “issue”, or “heirs of the body” 15‑11‑709
By representation 15‑11‑710
Worthier-title doctrine abolished 15‑11‑711
Interests in “heirs” and like 15‑11‑712
Simultaneous death 15‑11‑713
Construction of wills and trusts containing formula marital clauses 15‑11‑802
Effect of divorce, annulment, and decree of separation 15‑11‑803
Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations 15‑11‑804
Revocation of probate and nonprobate transfers by divorce - no revocation by other changes of circumstances 15‑11‑805
Ownership of personal property between spouses 15‑11‑806
Reformation to correct mistakes 15‑11‑807
Modification to achieve transferor’s tax objectives 15‑11‑901
Honorary trusts 15‑11‑1001
Short title 15‑11‑1002
Definitions 15‑11‑1003
International wills - validity 15‑11‑1004
International wills - requirements 15‑11‑1005
International wills - other points of form 15‑11‑1006
Certificate that requirements for an international will have been met 15‑11‑1007
Effect of certificate 15‑11‑1008
Revocation 15‑11‑1009
Source and construction of this part 15‑11‑1010
Persons authorized to act in relation to international will - eligibility - recognition by authorizing agency 15‑11‑1011
Filing of international will - certificate and deposit of will 15‑11‑1101
Short title 15‑11‑1102.5
Statutory rule against perpetuities 15‑11‑1103
When nonvested property interest or power of appointment created 15‑11‑1104.5
Reformation 15‑11‑1105
Exclusions from statutory rule against perpetuities 15‑11‑1106
Prospective application 15‑11‑1106.5
Retroactive application of certain provisions - notice of election 15‑11‑1107
Uniformity of application and construction 15‑11‑1201
Short title 15‑11‑1202
Definitions 15‑11‑1203
Scope 15‑11‑1204
Part supplemented by other law 15‑11‑1205
Power to disclaim - general requirements - when irrevocable 15‑11‑1206
Disclaimer of interest in property 15‑11‑1207
Disclaimer of rights of survivorship in jointly held property 15‑11‑1208
Disclaimer of interest by trustee 15‑11‑1209
Disclaimer of power of appointment or other power not held in fiduciary capacity 15‑11‑1210
Disclaimer by appointee, object, or taker in default of exercise of power of appointment 15‑11‑1211
Disclaimer of power held in fiduciary capacity 15‑11‑1212
Delivery or filing 15‑11‑1213
When disclaimer barred or limited 15‑11‑1214
Tax-qualified disclaimer 15‑11‑1215
Filing or registering of disclaimer 15‑11‑1216
Application to existing relationships 15‑11‑1217
Uniformity of application and construction 15‑11‑1218
Severability 15‑11‑1301
Short title 15‑11‑1302
Definitions 15‑11‑1303
Law applicable to electronic wills - principles of equity 15‑11‑1304
Choice of law regarding execution 15‑11‑1305
Execution of electronic will 15‑11‑1306
Harmless error 15‑11‑1307
Revocation 15‑11‑1308
Electronic will attested and made self-proving at time of execution 15‑11‑1309
Certification of paper copy 15‑11‑1310
Uniformity of application and construction 15‑11‑1311
Application of part
Green check means up to date. Up to date

Current through Fall 2024

§ 15-11-212’s source at