Rights Of A Surviving Spouse

By Tamra K. Waltemath, P.C. ~

When a married person dies, his or her spouse has many rights pursuant to Colorado law, even if the spouse left no will. These rights include the right to be named as personal representative of the estate, certain monetary allowances, the right to certain property and a share of your spouse’s estate. These rights exist in a conventional marriage as well as a common law marriage. These rights do not exist for people in a domestic partnership or a civil union but these couples can give each other the same rights by executing wills, powers of attorney and beneficiary agreements.

If you are married and your spouse did not leave a will, you still have priority to be the personal representative or executor of your spouse’s estate. A personal representative has many duties and responsibilities and they are in control of how the estate is distributed and when, with certain limitations.

A surviving spouse is also entitled to a family allowance and a personal property exemption. A family allowance is an amount of money needed to support the surviving spouse and or dependent children during the administration of the estate. The allowance is not a set amount of money; the amount is determined by the needs of the family. The surviving spouse is also entitled to exempt property in the amount of approximately $30,000.00. In other words, the surviving spouse is entitled to keep up to thirty thousand dollars of personal property or cash, and this has priority over all other beneficiaries or creditors except for claims for the costs and expenses of administration, and reasonable funeral, burial, internment or cremation expenses.

A surviving spouse is entitled to a share of their spouse’s estate. The amount of property to which a surviving spouse is entitled depends on whether or not there were children outside the marriage and the age of the children. Keep in mind the deceased spouse’s estate consists of property held in his or her name only; joint property will pass to the joint owner and is not part of the deceased spouse’s estate.

If the deceased left a will, the surviving spouse is entitled to all of the property left to them in the will. If the deceased person was married and does not recognize the spouse in their will, the surviving spouse has the right to contest the will and petition the court for a share of the deceased spouse’s estate. This share is calculated by looking at the property of both spouses and applying a complicated formula. You must consult an attorney if you find yourself in these circumstances.

Tamra K. Waltemath

Tamra K. Waltemath

This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C.  This information is for general informational purposes only and does not constitute legal advice.  For specific questions, you should consult a qualified attorney. Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships.  She can be contacted at:  Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO  80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.


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