Colorado Elective Share: What a Surviving Spouse Is Guaranteed to Inherit

Colorado law does not allow a person to completely disinherit their surviving spouse. Even if a will leaves everything to someone else — children from a prior marriage, a charity, or a friend — the surviving spouse has a legal right to claim a minimum share of the estate. This right is called the elective share, and in 2026 the guaranteed floor is $73,000.

Understanding how the elective share works — and when to claim it — is essential for any surviving spouse who believes they may have been left with less than what the law guarantees.

How the Colorado Elective Share Is Calculated

Colorado's elective share is based on a percentage of the "augmented estate," which is a broader concept than just the probate estate. The augmented estate includes not only assets that pass through the will, but also certain non-probate transfers the decedent made during their lifetime — gifts to others, revocable trusts, joint accounts, and other transfers designed to reduce the surviving spouse's inheritance.

The elective share percentage scales with the length of the marriage:

• Under 1 year of marriage: 3% of the augmented estate
• 1 year: 6%
• 2 years: 12%
• 3 years: 18%
• 4 years: 24%
• 5 years: 30%
• 6 years: 36%
• 7 years: 42%
• 8 years: 48%
• 9 years: 54%
• 10 years: 60%
• 11 years: 66%
• 12 years: 72%
• 13 years: 78%
• 14 years: 84%
• 15 or more years: 100%

At 15 or more years of marriage, the surviving spouse is entitled to 100% of the augmented estate amount.

The $73,000 Minimum Supplemental Elective Share

Regardless of the calculation above, Colorado guarantees the surviving spouse a minimum of $73,000 in 2026. This is called the supplemental elective share. Even in a short marriage, even if the percentage calculation yields a very small number, the surviving spouse is always guaranteed at least $73,000 from the combined augmented estate.

This threshold adjusts annually for inflation, like other Colorado probate thresholds.

The Elective Share Is Not Automatic

The surviving spouse must affirmatively claim the elective share. It does not apply automatically. The right to claim must be exercised within nine months of the decedent's death, or within six months after the will is admitted to probate, whichever is later.

Missing this deadline extinguishes the right entirely. If you believe the will leaves you less than the statutory elective share, do not wait to investigate the calculation. Consult a probate attorney promptly.

What the Elective Share Covers and What It Does Not

The elective share calculation can be complex because the augmented estate includes both the decedent's and the surviving spouse's own assets. The surviving spouse's existing property — including what they already own, what they will receive through non-probate transfers, and what the will gives them — all count toward satisfying the elective share.

In practice: if the surviving spouse is already receiving substantial non-probate assets (a large life insurance payout, a jointly-owned home, retirement accounts), those may already meet or exceed the elective share amount. The elective share is not necessarily an additional entitlement on top of everything else — it is a floor that the total of everything the spouse receives must meet.

Elective Share vs. Other Surviving Spouse Protections

The elective share is one of several Colorado protections for surviving spouses. It operates alongside:

$44,000 exempt property allowance: The first $44,000 worth of the decedent's tangible personal property (household furniture, vehicles, personal effects) passes to the surviving spouse or dependent children, shielded entirely from creditor claims. This allowance has absolute priority over general creditor claims.

$44,000 family allowance: The surviving spouse can draw up to $44,000 as a lump sum (or $3,667 per month) from the estate for maintenance during the administration period. This allowance also has priority over nearly all creditors.

$250,000 homestead exemption ($350,000 for those aged 60+ or disabled): Protects the primary residence from forced sale to satisfy creditor claims.

These protections are additive. The exempt property allowance and family allowance are not counted against the elective share.

When the Elective Share Matters Most

The elective share typically becomes relevant when:

• A person died with a will that favors children from a prior marriage over the current spouse
• The decedent executed a will before a later marriage without updating it
• There are claims that the decedent made large gifts or transferred assets out of the estate during their lifetime specifically to reduce the spouse's inheritance
• The surviving spouse was largely financially dependent on the decedent and faces immediate hardship

If any of these situations apply, the combination of the elective share claim, the exempt property allowance, and the family allowance can provide substantial financial protection even from an estate that appears to have left the surviving spouse out.

What to Do If You Believe You Are Owed an Elective Share

1. Identify what you are receiving through all channels — the will, joint accounts, life insurance, and other non-probate transfers.
2. Estimate the length of the marriage and identify which percentage applies.
3. Compare your projected total to the augmented estate calculation.
4. If there appears to be a shortfall, consult a probate attorney before the nine-month deadline expires.

The Colorado Estate Settlement Guide at /us/colorado/estate-settlement/ covers the full spectrum of surviving spouse protections under Colorado law, including the exempt property allowance, family allowance, and homestead exemption — along with the step-by-step process for administering the estate from start to close.

See more Colorado guides →