Colorado Exempt Property: What Surviving Spouses Can Claim

Colorado gives a surviving spouse the right to set aside a fixed value of estate property before most creditors or other beneficiaries take anything. This protection is called the exempt property allowance, and under C.R.S. 15-11-403 it is worth $44,000 for deaths in 2026. It applies whether or not there is a will, and it stacks on top of anything the spouse inherits.

This guide is a focused look at Colorado exempt property: what it is, what qualifies, who can claim it, how it differs from the family allowance and the homestead, and how to actually set it aside. For the full set of spousal protections, including the elective share and the intestate share, see the Colorado surviving spouse rights guide.

What Is Colorado Exempt Property?

The exempt property allowance is Colorado's version of the Uniform Probate Code exempt property protection. Colorado adopted the Uniform Probate Code, so a surviving spouse is entitled to cash or other estate property, in excess of any security interests, worth a set amount (C.R.S. 15-11-403).

The statutory base is $30,000. That figure is indexed for inflation under C.R.S. 15-10-112, and the Colorado Department of Revenue publishes the adjusted amount each year. For deaths in 2026 the exempt property allowance is $44,000 (it was $43,000 for deaths in 2025). Because the amount is CPI-adjusted, the figure that applies is the one published for the decedent's year of death, not the year the estate is administered.

The allowance is measured net of security interests. If a claimed item secures a loan, only the value above that lien counts toward the $44,000.

What Qualifies

The exempt property allowance is a value, not a fixed list of items. The surviving spouse (or dependent children, if there is no spouse) may select cash or other estate property up to the $44,000 amount. In practice, families most often set aside everyday personal property, such as:

• Household furniture, including living room, bedroom, and dining furniture
• One or more automobiles used by the family
• Furnishings such as rugs, lamps, and window treatments
• Household appliances, including the refrigerator, stove, washer, and dryer
• Personal effects and other tangible personal property
• Cash, when personal property does not reach the full amount

Because the allowance is defined by dollar value rather than by category, cash can fill any gap. If the selected personal property is worth less than $44,000, the spouse can take cash or other estate property to reach the amount.

Who Can Claim It

Colorado sets a clear order for who may claim the exempt property allowance (C.R.S. 15-11-403).

1. Surviving spouse first. The surviving spouse is entitled to the exempt property allowance ahead of anyone else. This is true even if the will leaves the property elsewhere, because the allowance is in addition to anything the spouse receives by will, by intestacy, or by elective share, unless the will provides otherwise.
2. Dependent children if there is no surviving spouse. If there is no surviving spouse, the decedent's dependent children are entitled jointly to the same exempt property allowance.

Adult children who are not dependents generally do not claim the allowance while a surviving spouse is living. The protection is aimed at the spouse and dependents.

How It Differs From the Family Allowance and Homestead

People often blur three separate Colorado protections. They are not the same, and a surviving spouse may be entitled to more than one.

Two points matter here. First, the exempt property allowance and the family allowance are distinct: one is a set-aside of estate property, the other is money support during administration, and a spouse may claim both. Second, Colorado has no probate homestead allowance. Colorado did not adopt the Uniform Probate Code homestead allowance; C.R.S. 15-11-402 states that the homestead exemption statutes do not create an allowance for the surviving spouse or minor children. Colorado's larger exempt property allowance stands in its place. The Title 38 homestead exemption still exists, but it protects home equity from creditors rather than granting a probate cash allowance. The full breakdown of all of these protections is in the Colorado surviving spouse rights guide.

Priority Over Creditors

The exempt property allowance has strong priority. Under C.R.S. 15-11-403, it has priority over every claim against the estate except administration costs and reasonable final disposition and funeral expenses. It also abates, meaning it gives way, only as necessary to permit payment of the family allowance.

In plain terms, the spouse's exempt property comes ahead of general unsecured creditors:

• Protected from: credit card balances, personal loans, medical bills, and most other unsecured claims.
• Not protected from: a valid security interest in the specific property. The allowance is measured in excess of any security interests, so a purchase-money lien on a vehicle still encumbers that vehicle. The spouse takes the item subject to the loan, and only the equity above the lien counts toward the $44,000.

This priority holds even when the estate is insolvent. If debts exceed assets, the surviving spouse still receives the exempt property allowance before general creditors are paid.

How to Claim It

The claim is usually straightforward and often does not require a contested hearing.

1. Identify qualifying property and values. List the personal property, note fair market values, and subtract any liens. Cash can fill any remaining gap up to $44,000.
2. Select the property. The surviving spouse, the guardians of minor children, or adult dependent children may select estate property as the exempt property allowance (C.R.S. 15-11-405(1)). If they do not, the personal representative may make the selection and execute a deed of distribution for the selected property.
3. Set it aside through the estate. In most estates the personal representative simply sets the property aside for the spouse. There is no separate court order required in the ordinary case.
4. Petition the court if there is a dispute. An interested person who disagrees may petition the court for relief. In the City and County of Denver the Denver Probate Court hears the matter; elsewhere it is the District Court of the county where the decedent lived.

Watch the deadline. A request for exempt property must be made within 6 months after the first publication of notice to creditors or within 1 year after death, whichever expires first. The court may extend for cause, but not beyond 2 years after death (C.R.S. 15-11-405(3)). Missing this short window can forfeit the allowance.

Waiving Exempt Property Rights

A surviving spouse can give up the exempt property allowance, either in advance or after the death.

• By agreement. The exempt property allowance can be waived in a valid written agreement, such as a prenuptial or postnuptial agreement. A waiver is generally enforced only when it is in writing, signed voluntarily, and made with fair disclosure of finances or a knowing waiver of disclosure. Confirm the specific requirements with a licensed Colorado attorney before relying on a waiver.
• By choice after death. A spouse who does not need the property can simply decline to claim it, letting the items pass under the will or intestacy to children or other heirs.

A waiver of the exempt property allowance does not by itself waive the family allowance or the elective share. Each protection is separate, so read any agreement carefully to see exactly which rights it gives up.

Frequently Asked Questions

How much is the Colorado exempt property allowance?

For deaths in 2026 it is $44,000 (C.R.S. 15-11-403). The statutory base is $30,000, and the amount is adjusted for inflation each year under C.R.S. 15-10-112, so the figure depends on the decedent's year of death. It was $43,000 for deaths in 2025.

Can creditors take the exempt property?

Generally no. The exempt property allowance has priority over most claims, including unsecured debts like credit cards and medical bills. The main exception is a valid security interest in the specific item, such as a car loan, which still encumbers that item because the allowance is measured net of security interests.

Does Colorado have a probate homestead allowance in addition to this?

No. Colorado did not adopt the Uniform Probate Code homestead allowance (C.R.S. 15-11-402). The larger exempt property allowance stands in its place. Colorado does have a separate Title 38 homestead exemption that protects home equity from creditors, but that is not a probate cash allowance.

Can children claim the exempt property if the spouse is alive?

No. The surviving spouse has first priority. The decedent's dependent children can claim the exempt property allowance jointly only when there is no surviving spouse.

Related Guides

• Colorado Surviving Spouse Rights - the elective share, allowances, and intestate share together
• Colorado Intestate Succession - who inherits when there is no will
• Colorado Personal Representative Duties - who selects and sets aside the exempt property
• Colorado Estate Creditor Claims - why the allowance has priority over most debts
• Colorado Probate Guide - how a Colorado estate moves through court

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Sources

Sources:

• Title: Colorado Revised Statutes 2025, Title 15, Article 11, Part 4 (Exempt Property and Allowances), including C.R.S. 15-11-402 (no homestead allowance), 15-11-403 (exempt property allowance), 15-11-404 and 15-11-405 (family allowance and procedure), and 15-10-112 (cost-of-living adjustment). Publisher: Colorado Office of Legislative Legal Services. Publication Date: 2025 edition, accessed 2026-07-01. URL: https://olls.info/crs/crs2025-title-15.pdf
• Title: Colorado Revised Statutes 2025, Title 38, Article 41 (Homestead Exemptions), including C.R.S. 38-41-201 (exemption amount). Publisher: Colorado Office of Legislative Legal Services. Publication Date: 2025 edition, accessed 2026-07-01. URL: https://olls.info/crs/crs2025-title-38.pdf
• Title: Cost of Living Adjustment of Certain Dollar Amounts for Property of Estates in Probate (2026 adjusted amounts). Publisher: Colorado Department of Revenue, Office of Research and Analysis. Publication Date: Prepared January 21, 2026, accessed 2026-07-01. URL: https://tax.colorado.gov/sites/tax/files/documents/Probate_Index_2026.xlsx
• Title: Colorado Revised Statutes, official public access page. Publisher: Colorado General Assembly. Publication Date: Current official code, accessed 2026-07-01. URL: https://leg.colorado.gov/colorado-revised-statutes

This guide provides general information about Colorado exempt property in probate. The allowance amount adjusts by year of death, so confirm the current figure and the claim deadline with the District Court or Denver Probate Court handling the estate, or with a licensed Colorado attorney. It is not legal advice.