Surviving spouse rights in Colorado include four estate protections that apply no matter what a will says: an elective share of the augmented estate, up to $30,000 in exempt personal property, a family allowance during probate, and an intestate share if there is no will. On top of those, federal law adds Social Security survivor benefits and several tax breaks. Each right has its own dollar limit and its own deadline, and the elective share deadline is the tightest one to watch.
The Elective Share Against the Will
Colorado’s elective share is the main protection against being cut out of a will. Even if the will leaves everything to someone else, a surviving spouse can claim a percentage of the “augmented estate.” The percentage scales with the length of the marriage, starting low for very short marriages and reaching up to 50% for longer ones.1Justia Law. Colorado Code 15-11-202 – Elective Share
The augmented estate is broader than the probate estate alone. Under Colorado law, it combines four categories: the decedent’s net probate estate, the decedent’s nonprobate transfers to others (such as assets in revocable trusts or accounts with payable-on-death designations), the decedent’s nonprobate transfers to the surviving spouse, and the surviving spouse’s own property and nonprobate transfers.2Colorado Public Law. Colorado Code 15-11-203 – Composition of the Augmented Estate The measure is the couple’s total wealth, not just what happens to flow through probate.
What the surviving spouse already received outside probate counts toward satisfying the elective share. Life insurance proceeds paid to the spouse, property held in joint tenancy, and similar transfers reduce what can be claimed from the probate estate.
The Nine-Month Deadline
A surviving spouse who wants the elective share must file a petition in court and deliver it to the personal representative within nine months after the death, or six months after the will is probated, whichever is later.3Colorado Public Law. Colorado Code 15-11-211 – Proceeding for Elective Share Miss the deadline and the right is gone. This should be one of the first questions a surviving spouse works through after a death.
What You Inherit If There Is No Will
When a Colorado resident dies without a valid will, the intestate succession statute puts the surviving spouse at the top of the priority list. How much the spouse inherits depends on who else survives: descendants of the decedent, whether those descendants are also the surviving spouse’s children, and whether a parent of the decedent is still living. The dollar figures below are the statutory base amounts and are subject to cost-of-living adjustments.4Colorado Public Law. Colorado Code 15-11-102 – Share of Spouse
- No descendants and no surviving parent of the decedent: the surviving spouse takes the entire estate.
- All of the decedent’s descendants are also the surviving spouse’s descendants, and the spouse has no other descendants: the surviving spouse takes the entire estate.
- No descendants, but a parent of the decedent survives: the surviving spouse takes the first $300,000 plus three-fourths of the remainder.
- All of the decedent’s descendants are also the spouse’s descendants, but the spouse has one or more children from another relationship: the surviving spouse takes the first $225,000 plus one-half of the remainder.
- One or more of the decedent’s descendants are not descendants of the surviving spouse: the surviving spouse takes the first $150,000 plus one-half of the remainder.5Justia Law. Colorado Code 15-11-102 – Share of Spouse
Exempt Property and Family Allowance
Two more rights give the surviving spouse fast access to property and cash, and both take priority over most creditor claims.
The exempt property right lets the surviving spouse claim up to $30,000 worth of personal property from the estate, free from most creditors. Household furnishings, personal effects, and vehicles are typical examples. If the estate does not hold enough personal property to reach $30,000, the spouse can claim other estate assets to make up the difference.6Justia Law. Colorado Code 15-11-403 – Exempt Property
The family allowance provides cash support to the surviving spouse and any minor children during probate. It can be paid as a lump sum or in installments, and it has priority over every claim against the estate except the costs of administration.7Justia Law. Colorado Code 15-11-404 – Family Allowance It exists to cover housing, food, and other necessities while the estate is being administered, which matters most when the deceased was the household’s primary earner.
The Homestead Exemption Is Not a Cash Payout
Colorado’s homestead exemption, found in Title 38, protects equity in the family home from creditors. It does not create an additional allowance payable from the estate to the surviving spouse or minor children.8Justia Law. Colorado Code 15-11-402 – Homestead Readers who have seen references to a homestead allowance under the Uniform Probate Code should note that Colorado does not replicate that cash allowance.
If You Married After the Will Was Written
Colorado also protects a spouse who was left out of a will simply because the will predates the marriage. If the decedent wrote a will and then married the surviving spouse without updating it, the surviving spouse is entitled to at least an intestate share of the portion of the estate that isn’t already left to the decedent’s pre-marriage children.9COCODE. Colorado Code 15-11-301 – Entitlement of Spouse, Premarital Will
This omitted-spouse right does not apply if the will shows it was made in contemplation of the marriage, if the will states it should remain effective despite any future marriage, or if the decedent provided for the spouse through transfers outside the will and the evidence shows those transfers were meant to substitute for a bequest.9COCODE. Colorado Code 15-11-301 – Entitlement of Spouse, Premarital Will Any gifts the will already makes to the surviving spouse are applied first toward satisfying the omitted-spouse share before other bequests are reduced.
When Spousal Rights Can Be Waived
All of these protections can be waived, but only through a specific type of document. Since July 1, 2014, any waiver of a surviving spouse’s elective share, exempt property, family allowance, or other marital rights is unenforceable unless it appears in a premarital or marital agreement that meets the Colorado Uniform Premarital and Marital Agreements Act.10Colorado Public Law. Colorado Code 15-11-213 – Waiver of Right to Elect and of Other Rights
A handwritten note, a verbal promise, or a signed letter is not enough. Couples with blended families, significant premarital assets, or business interests should address any intended waiver in a formal agreement rather than trust that an informal arrangement will be honored later.
Social Security Survivor Benefits
State law is only part of the picture. Federal Social Security survivor benefits give the surviving spouse a separate income stream that is independent of the estate.
A surviving spouse qualifies for monthly survivor benefits starting at age 60, or age 50 with a qualifying disability, provided the marriage lasted at least nine months before the death and the spouse has not remarried before age 60.11Social Security Administration. Survivor Benefits A surviving spouse caring for the deceased’s child under age 16 can receive benefits regardless of age or how long the marriage lasted.
There is also a one-time lump-sum death payment of $255. It must be claimed within two years of the death.12Social Security Administration. Lump-Sum Death Payment
Federal Tax Protections
Several federal tax rules favor a surviving spouse, but two of them require action within a filing deadline.
Step-Up in Basis
Inherited property gets a new tax basis equal to its fair market value on the date of the decedent’s death. A home the couple bought for $150,000 that was worth $500,000 when one spouse died has a $500,000 basis in the survivor’s hands. Selling shortly afterward at that price produces no taxable gain.13Internal Revenue Service. Gifts and Inheritances
Estate Tax Portability
For 2026, the federal estate tax exemption is $15 million per person, or effectively $30 million for a married couple. Most estates fall well below that. For those that don’t, the surviving spouse can use the deceased spouse’s unused exemption through portability. Preserving that option requires the executor to file a federal estate tax return (Form 706) even if no tax is owed.14Internal Revenue Service. Frequently Asked Questions on Estate Taxes If the return is not filed, the unused exemption is lost permanently.
Filing Status After a Spouse’s Death
For the year of the death itself, a joint return can still be filed with the deceased spouse. A surviving spouse with a dependent child can then file as a “qualifying surviving spouse” for the two tax years that follow, keeping the married-filing-jointly brackets and standard deduction. Eligibility requires that the survivor not remarry during that period, have a qualifying dependent child living in the home, and pay more than half the cost of maintaining the household.15Internal Revenue Service. Filing Status