Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney regarding your specific situation.
Detailed Answer
Under Colorado’s intestate succession statutes, heirs receive a fixed percentage or dollar amount of a decedent’s probate estate. The law does not provide a statutory right to elect a life estate instead of taking your intestate share in fee simple.
Intestate Share Framework:
- Surviving spouse without descendants inherits 100% of the estate. (See C.R.S. §15-11-106(1): 15-11-106.)
- Spouse plus descendants who are also descendants of the spouse: spouse takes the first $350,000 of the estate’s value plus one-half of the remainder; descendants split the rest. (C.R.S. §15-11-106(2).)
- Other intestate heirs (parents, siblings, more remote relatives) inherit under a defined order. (See C.R.S. §15-11-107 and following.)
These shares vest as a fee simple interest in the heirs’ names. There is no parallel to a “life estate election” in the intestacy statutes.
Workarounds by Agreement: If all heirs agree, you can restructure ownership of real property to create a life estate for one heir and remainder interests for others. To do this:
- File a Petition in Probate: The personal representative can seek court approval of a proposed property settlement among heirs.
- Execute a Partition and Settlement Agreement: Under C.R.S. §15-18-101 (Partition of real estate), co-owners can agree to divide or restructure property interests.
- Record a Life Estate Deed: Once agreed, record a deed granting the life estate to one heir and the remainder interests to others.
Absent such a consensual arrangement, Colorado law requires distribution according to statutory intestate shares.
Helpful Hints
- Review your deceased loved one’s probate file and the personal representative’s inventories before proposing any agreement.
- Consult C.R.S. §15-11-106 for spouse’s intestate share and C.R.S. §15-11-107 for other heirs’ shares.
- Speak with an estate planning or probate attorney to draft a settlement and life estate deed that comply with statutory requirements.
- Ensure all heirs sign the partition agreement; the probate court will need proof of unanimous consent.
- Record property documents promptly at the county clerk’s office to protect the new life estate interests.