What Are My Property Rights As A Surviving Spouse?

“Mike and Emily had been married for 8 years when Mike died. Both individuals had a child from a previous marriage. Emily does not whether Mike had a Will, but he used to tell her that all of his property was going to his kids when he died. Mike owned the following property on his death: (1) a house titled solely in Mike’s name, worth $900,000; (2) a savings account worth $100,000; and (3) a life insurance policy worth $1 million. Mike’s insurance policy named Emily and Sam as equal beneficiaries. Emily did not have any assets at the time of Mike’s death. ”

The death of a spouse is a tragic event. This can be compounded if the deceased spouse attempted to disinherit the surviving spouse, or left no Will. In those situations, Colorado law provides statutory rights to the surviving spouse. The rights depend on whether the deceased spouse died with a Will or not.

INTESTATE SUCCESSION

“Intestate” means that the individual died without a Will. In the above example, assume that Mike died without a Will. The first step is to separate probate from non-probate assets. Life insurance is considered a non-probate asset, because it is paid directly to the named beneficiary. Thus, the total value of Mike’s estate is $1 million.

Because Mike has a child from a previous marriage, Emily is entitled to $150,000, plus one-half of the balance of Mike’s estate. In this case, Emily would receive the first $150,000. She would also receive one-half of $850,000. Thus, Emily would receive a total of $575,000.

ELECTIVE SHARE

Let’s assume that Mike’s Will left his bank account and house to his son, Sam. In this instance, Emily is entitled to an elective share, which is equal to 50% of the marital-property portion of Mike’s estate.

First, we calculate the value of all of Mike’s property. Although life insurance is a non-probate asset, it is included in the calculation of Emily’s elective share. Thus, for purposes of this example, the total value of Mike’s estate is $2 million. This amount is then multiplied by a percentage, which is based on the total number of years Mike and Emily were married. Because they were married for 8 years, that percentage is 80% (to equal $1.6 million). We then divide $1.6 million in half to get the marital-property portion, which equals $800,000. Finally, we deduct the amount of the life insurance proceeds that Emily received ($500,000). Therefore, Emily is entitled to an additional $300,000 from Mike’s estate, on top of the life insurance proceeds. The remaining $1.2 million will go to Sam.

The surviving spouse must claim the elective share within nine months of the spouse’s death. The exact calculation of an elective share is complicated, and depends on many factors that were not covered in this example. Therefore, you should seek legal counsel immediately if you have questions about your rights.