Colorado Inheritance Laws: Intestate Shares, Probate, and Elective Share

Colorado inheritance law sends property one of three ways: through a valid will, through the state’s intestate succession statute when there is no will, or outside probate entirely when an asset was set up with a joint owner, a named beneficiary, or a trust. Colorado charges no state estate or inheritance tax, so what you receive is not reduced by a state-level death tax.¹ The rules that actually decide who gets what — and how much — turn on family relationships, the length of the marriage, and how each asset was titled.

Who Inherits When There Is No Will

If someone dies without a valid will, Colorado’s intestate succession statute controls the distribution.² One threshold rule applies to every heir: you must outlive the deceased by at least 120 hours. Die within that five-day window and the law treats you as having died first, sending your share to the next person in line.³

The Surviving Spouse’s Share

A surviving spouse’s intestate share depends on who else is alive and whose children the descendants are. The statute sets four scenarios:⁴

No surviving descendants and no surviving parent: the spouse takes the entire estate.
No descendants but a parent survives: the spouse receives the first $300,000 plus three-fourths of the balance.
All of the deceased’s descendants are also the spouse’s, but the spouse has other children of their own: the spouse receives the first $225,000 plus half of the balance.
The deceased leaves descendants who are not the spouse’s children: the spouse receives the first $150,000 plus half of the balance.

Those dollar figures are base amounts written into the statute, and Colorado adjusts them periodically for cost of living, so the numbers effective at the date of death may be higher.⁴ Anything above the spouse’s share passes to the descendants.

When No Spouse Survives

With no surviving spouse, the estate passes to the deceased’s children in equal shares. If a child has died leaving children of their own, those grandchildren step into the deceased child’s slot and divide that share. With no descendants, the estate goes to surviving parents, then outward to siblings and their descendants, then to grandparents, and so on.⁵ Only if the search turns up no relative at all does the estate escheat to the state.⁶

Colorado also recognizes an instrument most states do not: a designated beneficiary agreement, signed by two unmarried adults, that can grant one another inheritance rights akin to a spouse’s under intestate succession.⁷ A valid will, power of attorney, or account beneficiary designation overrides it.

Making a Will That Holds Up

A Colorado will must be in writing and signed by the person making it. It also needs two witnesses who sign within a reasonable time after watching the signing, or acknowledgment before a notary public.⁸ Witnesses must be physically nearby, though not necessarily in the signer’s direct line of sight.

Colorado also honors holographic wills. These are handwritten and need no witnesses or notary, but the signature and the material terms must be in the person’s own handwriting.⁸ They are valid, but easier to contest because no witness can attest to the writer’s state of mind.

The Spouse’s Elective Share, Even With a Will

A Colorado will cannot fully disinherit a spouse. The surviving spouse may claim an elective share equal to 50% of the marital-property portion of the augmented estate.⁹

The augmented estate is broader than the probate estate. It combines the probate estate, non-probate transfers the deceased made to third parties, non-probate transfers to the surviving spouse, and the surviving spouse’s own property.¹⁰ The breadth is deliberate: it stops a spouse from shifting assets into trusts, joint accounts, or transfer-on-death designations to shrink what the survivor can reach.

How much of the augmented estate counts as “marital-property portion” depends on how long the couple was married. Under one year, only a supplemental amount is available. At one year the portion is 10%, and it climbs by ten percentage points per year until it reaches 100% at ten years.¹⁰ The elective share is then half of whatever that portion turns out to be. For a marriage of ten years or more, the survivor can potentially claim 50% of the entire augmented estate.

The surviving spouse has to act. A petition must be filed with the court and delivered to the personal representative within nine months of the death, or six months after the will is probated, whichever comes later.¹¹ An extension is available if requested within that initial nine-month window and all interested parties are notified.

Assets That Skip Probate

Not every asset flows through the will or the intestate statute. Property held in joint tenancy with right of survivorship passes automatically to the surviving co-owner on production of a death certificate. Bank accounts with payable-on-death instructions and brokerage accounts with transfer-on-death designations work the same way: the institution releases funds directly to the named beneficiary.

Assets held in a revocable living trust also stay out of probate. The successor trustee named in the trust document distributes the property according to the creator’s directions, and beneficiaries usually gain access sooner than they would through a probate estate.

One caveat matters if a spouse is involved. Placing assets in a trust or attaching a transfer-on-death beneficiary does not remove them from the augmented estate for elective-share purposes; Colorado’s calculation specifically pulls those non-probate transfers back in.¹⁰ Avoiding probate and avoiding the elective share are separate questions.

The Small Estate Shortcut

When the total value of the estate, minus debts secured by the property, falls below a statutory threshold, heirs can bypass formal probate entirely with a small estate affidavit. For deaths in 2026, that threshold is $88,000, and it adjusts annually for cost of living.¹²¹³

The form is JDF 999, available through the Colorado Judicial Branch. You’ll need the deceased’s full legal name, Social Security number, and exact date of death, along with account numbers or vehicle identification numbers for each asset. Everyone entitled to a share must be listed. At least ten days must pass between the death and the use of the affidavit.¹²

The completed form is signed before a notary. It is not filed with the court. You present the notarized original, or a certified copy, directly to the bank, DMV, or other institution holding the asset.¹² Bring extras; each institution keeps the copy you hand over. Institutions that release assets to the person named in a properly executed affidavit are legally protected, and one that refuses without good reason may end up paying attorney fees when a court orders the transfer.

Creditor Claims Come First

Debts do not disappear at death. Pre-death creditors have a limited window to file claims against the estate, and the personal representative must handle those before distributing anything to heirs. The outer deadline is one year from the date of death; after that, pre-death claims are permanently barred.¹⁴

The representative can shorten that window by publishing a notice to creditors or sending written notice to known creditors, in which case claims not filed within the noticed period are barred earlier. Debts that arise after the death face a shorter four-month deadline.¹⁴ For heirs, this is the reason not to push for immediate distribution. A representative who pays out before the creditor period closes can be personally liable if legitimate claims come in later.

Taxes on What You Inherit

Colorado imposes no state estate tax and no inheritance tax. The state ended its estate tax for deaths after December 31, 2004, and has not brought it back.¹ Neither the estate nor the beneficiaries owe Colorado tax simply because property changed hands at death.

Federal estate tax is separate and reaches only large estates. The 2026 federal exemption is $15,000,000 per person, with rates up to 40% on any excess.¹⁵ Married couples can effectively double the exemption by using portability, which lets a surviving spouse claim the unused portion of the first spouse’s exemption.

The tax rule that matters most to typical heirs is the step-up in basis. When you inherit an appreciated asset, your tax basis resets to its fair market value on the date of death rather than what the original owner paid.¹⁶ If a parent bought a house for $120,000 and it was worth $450,000 on the day they died, your basis is $450,000. Sell for $460,000 the next year and only $10,000 of gain is taxable, not the $340,000 that accumulated during their life. The step-up applies to real estate, stocks, bonds, and most other appreciated property. It does not apply to retirement accounts such as 401(k)s and traditional IRAs, where distributions are taxed as ordinary income regardless of when the contributions were made.

1
Colorado General Assembly. Estate Tax
2
Justia. Colorado Code 15-11-101 – Intestate Estate
3
FindLaw. Colorado Code 15-11-104 – Requirement of Survival by 120 Hours
4
Justia. Colorado Code 15-11-102 – Share of Spouse
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Colorado Public Law. Colorado Code 15-11-103 – Share of Heirs Other Than Surviving Spouse and Designated Beneficiary
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Justia. Colorado Code 15-11-105 – No Taker
7
Justia. Colorado Code 15-22-106 – Statutory Form for Designated Beneficiary Agreement
8
Colorado Public Law. Colorado Code 15-11-502 – Execution
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Justia. Colorado Code 15-11-202 – Elective Share
10
Justia. Colorado Code 15-11-203 – Composition of the Augmented Estate; Marital-Property Portion
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FindLaw. Colorado Code 15-11-211 – Right of Election; Time Limit
12
Colorado Judicial Branch. JDF 998 Guide to Collecting a Decedent’s Personal Property
13
Colorado Public Law. Colorado Code 15-12-1201 – Collection of Personal Property by Affidavit
14
FindLaw. Colorado Code 15-12-803 – Limitations on Presentation of Claims
15
Internal Revenue Service. What’s New – Estate and Gift Tax
16
Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent