Colorado Surviving Spouse Rights

Colorado law gives a surviving spouse a set of protections that a will cannot erase. Even when a will leaves the estate to someone else, the spouse can claim an elective share of the augmented estate, an exempt property allowance, and a family allowance. This guide explains each protection, the current Colorado dollar amounts, and the deadlines that control them. Colorado adopted the Uniform Probate Code, so these rights are handled through the District Court of the county where the person lived, except in the City and County of Denver, where the standalone Denver Probate Court has probate jurisdiction.

Overview of Spousal Rights

Colorado stacks several separate protections for a surviving spouse. Each one is independent, and a spouse can claim more than one.

Elective Share - The right to take 50% of the marital-property portion of the augmented estate instead of taking under the will (C.R.S. 15-11-201 to 15-11-214).
Exempt Property Allowance - A set-aside of estate property with priority over most creditor claims (C.R.S. 15-11-403).
Family Allowance - Support paid during administration (C.R.S. 15-11-404).
Intestate Share - What the spouse inherits when there is no will (C.R.S. 15-11-102).
Homestead Exemption - Creditor protection on home equity that survives for the spouse and minor children (C.R.S. 38-41-201 and 38-41-204).

The exempt property allowance and the family allowance are in addition to anything the spouse receives by will, by intestacy, or by elective share, unless the will provides otherwise (C.R.S. 15-11-403 and 15-11-404).

The Augmented-Estate Mechanism

Colorado follows the Uniform Probate Code augmented-estate model rather than a flat percentage of the probate estate. A surviving spouse may elect to take a statutory share of the augmented estate instead of taking under the will (C.R.S. 15-11-201 to 15-11-214). The augmented estate is a combined pool that reaches beyond the probate estate to include certain non-probate transfers, so a spouse generally cannot be sidestepped by moving assets outside the will. The exact composition of the augmented estate is defined by C.R.S. 15-11-201 to 15-11-214.

How Much the Elective Share Is

The elective-share amount is 50% of the marital-property portion of the augmented estate (C.R.S. 15-11-202(1)). The marital-property portion is not fixed. It is a percentage that increases with the length of the marriage under C.R.S. 15-11-203: it starts low for a short marriage and rises as the marriage lengthens.

Because the elective share equals 50% of the marital-property portion, the share reaches its maximum of 50% of the augmented estate only when the marital-property percentage reaches 100%, which the schedule reserves for the longest marriages. A shorter marriage yields a smaller percentage. Confirm the current year-by-year percentages against C.R.S. 15-11-203 before running the math, because the schedule sets the marital-property portion for each length of marriage.

The Supplemental Minimum

Colorado also sets a floor. If the elective share and the other property passing to the spouse fall below a supplemental elective-share amount, the spouse is topped up to that minimum (C.R.S. 15-11-202(2)). The statutory base is $50,000, adjusted for inflation under C.R.S. 15-10-112. For deaths in 2026 the supplemental amount is $73,000.

The Allowances Are Separate

Taking the elective share does not cost the spouse the allowances. The exempt property allowance and the family allowance are in addition to the elective share and are not charged against it (C.R.S. 15-11-202(3)).

Exempt Property

Colorado's exempt property allowance sets aside a fixed value of estate property for the surviving spouse. Under C.R.S. 15-11-403, the surviving spouse is entitled to cash or other estate property, in excess of any security interests, worth a base of $30,000 adjusted under C.R.S. 15-10-112. For deaths in 2026 the exempt property allowance is $44,000 (it was $43,000 for deaths in 2025).

If there is no surviving spouse, the decedent's dependent children are entitled jointly to the same exempt property. The allowance has priority over every claim against the estate except administration costs and reasonable final disposition and funeral expenses, and it abates as necessary to permit payment of the family allowance.

Family Allowance

During administration, the surviving spouse and the minor and dependent children the decedent was obligated to support are entitled to a reasonable allowance in money for maintenance (C.R.S. 15-11-404).

The personal representative may set the family allowance without a court order up to a lump sum of $30,000 base, or periodic installments of $2,500 per month base, for one year (C.R.S. 15-11-405). Both figures are adjusted under C.R.S. 15-10-112. For deaths in 2026 that ceiling is a lump sum of $44,000 or installments of $3,667 per month for one year. A larger amount requires a court order.

The family allowance is support-focused and time-limited. It runs during administration and may not continue longer than one year if the estate is inadequate to discharge allowed claims. Like the exempt property allowance, it has priority over all claims except administration costs and reasonable final disposition and funeral expenses.

Homestead Exemption

Colorado is different from many states here. Colorado did not adopt the Uniform Probate Code homestead allowance. C.R.S. 15-11-402 states directly that the homestead exemption statutes do not create an allowance for the surviving spouse or minor children. So there is no separate probate homestead dollar figure to claim in addition to the allowances above. Colorado's larger exempt property allowance stands in its place.

What Colorado does provide is a homestead exemption that protects home equity from creditors. Under C.R.S. 38-41-201, an occupied homestead is exempt from execution and attachment up to $250,000 of equity, or $350,000 if the owner, the owner's spouse, or a dependent is elderly (age 60 or older) or disabled. When a person dies leaving a surviving spouse or minor children, they succeed to that homestead exemption (C.R.S. 38-41-204). This protects equity from creditors. It does not by itself transfer title, which still passes by will, beneficiary deed, survivorship, or intestacy.

If the spouse died without a will, the surviving spouse's share is set by C.R.S. 15-11-102 and depends on the family situation. If more than one circumstance applies, the statute uses the one that produces the largest spouse share. The dollar tiers adjust for inflation under C.R.S. 15-10-112. The figures below are the amounts for deaths in 2026.

Family situation	Surviving spouse share (deaths in 2026)	Statute base
No descendant and no parent of the decedent survives	Entire intestate estate	n/a
All the decedent's descendants are also the spouse's, and the spouse has no others	Entire intestate estate	n/a
No descendant survives, but a parent of the decedent survives	First $442,000, plus 3/4 of any balance	$300,000
All the decedent's descendants are also the spouse's, but the spouse has descendants from another relationship	First $332,000, plus 1/2 of any balance	$225,000
One or more of the decedent's descendants are not the spouse's	First $221,000, plus 1/2 of any balance	$150,000

For the full picture of who inherits when there is no will, see the Colorado intestate succession guide.

Waiver and Forfeiture

Waiver by Agreement

The elective share, the exempt property allowance, and the family allowance can be waived by 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.

Forfeiture

A surviving spouse can also lose these rights. Under Colorado's slayer statute, a person who feloniously kills the decedent forfeits the intestate share, the elective share, and other benefits from the estate, and is treated as having predeceased the decedent (C.R.S. 15-11-803).

Deadlines

Two deadlines matter most.

Exempt property and family allowance. A request for exempt property or the family allowance 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 both allowances.
Elective share. The election to take against the will is time-limited under C.R.S. 15-11-201 to 15-11-214. Confirm the current filing period with the District Court (or Denver Probate Court) handling the estate, or with the statute, before you rely on any date.

A surviving spouse should analyze the allowances, the elective share, the intestate share, and the will provisions together, because they interact.

How to Claim These Rights

The surviving spouse, the guardians of minor children, or adult dependent children may select estate property as the exempt property allowance. If they do not, the personal representative may make the selections, execute a deed of distribution, and determine and disburse the family allowance within the statutory caps (C.R.S. 15-11-405(1)). An interested person who disagrees may petition the court for relief.

A few practical points follow from Colorado law:

The family allowance can matter early. It is support-focused, has priority over most claims, and the personal representative can pay it within the statutory caps without a court order (C.R.S. 15-11-405).
Check liens first. The exempt property allowance is measured in value in excess of any security interests, so confirm purchase-money obligations and liens before treating property as available (C.R.S. 15-11-403).
Document the claim. Record the claimed assets, their values, any liens, dependency status, and the authority to claim, because the personal representative can issue a deed of distribution for selected exempt property.
Watch the deadline. The 6-month or 1-year request window for the allowances is short, and missing it can forfeit both.

Frequently Asked Questions

Can my spouse disinherit me in Colorado?

Not entirely. Even if the will leaves you nothing, you can claim the elective share (50% of the marital-property portion of the augmented estate), the exempt property allowance, and the family allowance. Together these set a floor that a will cannot remove.

How much is the Colorado elective share?

It is 50% of the marital-property portion of the augmented estate (C.R.S. 15-11-202). The marital-property portion rises with the length of the marriage, so the share reaches its maximum of 50% of the augmented estate only for the longest marriages. A supplemental minimum also ensures the spouse receives at least $73,000 for deaths in 2026.

What allowances can a Colorado surviving spouse claim?

For deaths in 2026, the exempt property allowance is $44,000, and the family allowance can be set by the personal representative without a court order up to a lump sum of $44,000 or $3,667 per month for one year. Both have priority over most claims and are in addition to any inheritance or elective share.

Does Colorado have a homestead allowance?

No. Colorado did not adopt the Uniform Probate Code homestead allowance (C.R.S. 15-11-402). Instead a larger exempt property allowance applies, and the Title 38 homestead exemption ($250,000, or $350,000 if the owner, spouse, or a dependent is elderly or disabled) protects home equity from creditors and survives for the spouse and minor children.

Colorado Intestate Succession - who inherits when there is no will
Colorado Personal Representative Duties - who determines and pays the allowances
Colorado Probate Guide - how a Colorado estate moves through court
Colorado Estate Creditor Claims - why the allowances have priority over most debts
How to Avoid Probate in Colorado - which assets pass outside the probate estate

Sources

Sources:

Title: Colorado Revised Statutes 2025, Title 15, Article 11 (Intestate Succession, Wills, and Donative Transfers), including C.R.S. 15-11-102 (intestate spouse share), 15-11-201 to 15-11-214 (elective share of the augmented estate), 15-11-202 and 15-11-203 (elective-share amount and marital-property portion), 15-11-402 (no homestead allowance), 15-11-403 (exempt property allowance), 15-11-404 and 15-11-405 (family allowance and procedure), 15-11-803 (slayer rule), 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) and 38-41-204 (surviving spouse and minor children). 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 surviving spouse rights in probate. The amounts adjust by year of death and the elective share turns on the length of the marriage, so confirm the current figures and deadlines with the District Court or Denver Probate Court handling the estate or a licensed Colorado attorney. It is not legal advice.