The will is read, and a widow who spent decades building a life with her husband learns she has been left almost nothing — the estate directed instead to children from his first marriage, or to a trust she's never seen. Her first assumption is that nothing can be done; wills are wills. In Colorado, that assumption is wrong. The law refuses to let marriage end in total disinheritance.
The tool is called the elective share: a surviving spouse's statutory right to claim a protected portion of the deceased spouse's estate, regardless of what the will says. It reflects a simple judgment embedded in Colorado law — that marriage is an economic partnership, and a surviving partner should not be left with nothing from it.
Whiteford's Colorado team advises on the elective share from every direction: surviving spouses deciding whether to elect, families responding to an election, and couples planning ahead so the question never becomes a fight. Here's how the protection works in plain English.
How the elective share works
The core of the elective share is a choice. A surviving spouse can accept whatever the will provides — or elect against the will and take the share the law provides instead. In Colorado, that protected share is calculated on a sliding scale that grows with the length of the marriage: a brief marriage yields a modest protected share, while a long marriage yields a substantially larger one, reflecting the deepening of the economic partnership over time. The specific fractions and mechanics are set by statute, and the vetted law summary on this page carries the current details.
Just as important is what the share is calculated against. It isn't limited to the probate estate — the assets passing under the will. Colorado uses an augmented-estate concept that sweeps in a broader picture of the couple's wealth, including many assets that pass outside the will and certain transfers made before death. That breadth is deliberate: it prevents a spouse from being disinherited through clever titling rather than candid terms.
When elective-share questions arise
Elective-share disputes cluster around recognizable situations, and almost all of them involve remarriage, late-life marriage, or blended families — circumstances where a decedent's loyalty was genuinely divided between a spouse and children from an earlier chapter. Sometimes the disinheritance was a considered decision; sometimes it reflects an old will never updated for a new marriage; occasionally it signals something darker, like influence over a declining spouse.
These are the fact patterns we see most often. If yours resembles one of them, the essential first step is the same: get the estate's full picture and your options mapped before positions harden.
- A will that leaves the surviving spouse little or nothing, usually favoring children from a prior marriage
- An estate arranged so most wealth passes outside the will — trusts, joint accounts, beneficiary designations — leaving the spouse a share of very little
- A late-in-life marriage where the estate plan was never updated to reflect the new spouse at all
- A marital agreement in which a spouse may have waived elective-share rights, raising questions about the waiver's validity
- An election filed against an estate, leaving the family and personal representative to respond and recalculate distributions
Deciding whether to elect — and planning so no one has to
For a surviving spouse, election is a genuine decision, not a reflex. It requires comparing what the will and non-probate transfers already provide against what the elective share would yield from the augmented estate — an analysis that demands a real accounting of assets on both sides of the ledger. It also carries family consequences, since an election reshapes what everyone else receives. And critically, the window to elect is limited; like other contest windows in Colorado, it can be short, so the analysis should start promptly even if the decision deserves care.
For couples planning ahead, the elective share is a design constraint that rewards honesty. Spouses can waive elective-share rights in a valid marital agreement — the standard tool in blended families where both partners want their own children protected — and thoughtful planning can provide for a spouse generously through structures that also preserve an inheritance for children. What fails is silence. If your plan and your marriage haven't been looked at together, the free Colorado Estate Snapshot at /estate-snapshot will show whether they're aligned, and the free Legacy Game Plan Session with Whiteford's Colorado team can map the options from there.
