In re Estate of Cloos

2018 COA 161

• Court: Colorado Court of Appeals
• Decided: November 15, 2018
• Docket: 17CA1065
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY November 15, 2018

2018COA161

No. 17CA1065, In re Estate of Cloos — Probate — Elective- Share of Surviving Spouse — Supplemental Elective Share

A division of the court of appeals considers whether the

statutory “supplemental elective-share” applies to the distribution

of a probate estate to a disinherited surviving spouse with assets

exceeding $50,000. See § 15-11-202(2), C.R.S. 2018. The division

concludes that the district court erred in allocating $50,000 to the

disinherited spouse under section 15-11-202(2) when the record

showed he held assets worth substantially more than $50,000 and

had received assets worth over $100,000 from the nonprobate

estate. COLORADO COURT OF APPEALS 2018COA161

Court of Appeals No. 17CA1065 Larimer County District Court No. 15PR30 Honorable Devin R. Odell, Judge

In re the Estate of Irene Mae Cloos, deceased.

Jean Ann Cloos,

Appellant,

v.

Drexel H. Cloos; and Joseph D. Findley, as Personal Representative of the Estate of Irene Mae Cloos,

Appellees.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE RICHMAN Berger and Kapelke*, JJ., concur

Announced November 15, 2018

Jean Ann Cloos, Pro Se

Rosenberg, Smith & Zipser, PLLC, Amy K. Rosenberg, Fort Collins, Colorado, for Appellee Drexel H. Cloos

Kaufman & Findley, PC, Joseph D. Findley, Loveland, Colorado, for Appellee Joseph D. Findley

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 Jean Ann Cloos appeals the final settlement of the estate of

her mother, Irene Mae Cloos. She contends that the district court

erred by allocating $50,000 in “elective-share” funds from the

probate estate to the decedent’s husband of sixty-three years and

Jean Ann’s father, Drexel H. Cloos (husband), and by permitting

conflicts of interest. We reverse the order as to the award of

$50,000 as an elective share and remand for further proceedings.

I. Background

¶2 The decedent died testate, devising her entire estate to Jean

Ann.1 Although the accounting of the estate is not fully developed

in the record, it appears that the decedent owned the following

property on the date of her death:

 one-half of a house in Fort Collins appraised at $325,000

— husband owned the other half, and Jean Ann and

husband both resided there;

 a public employee retirement account of unknown value;

 an undetermined amount of personal property; and

1We refer to the appellant as Jean Ann, rather than Ms. Cloos, to avoid confusion with the decedent.

1  a shared cabin in Wyoming with an assessed value of

about $277,000, to which husband held survivorship

rights.

¶3 The decedent’s will nominated Jean Ann as the personal

representative (PR) for the estate, and she was appointed

approximately four months after the decedent’s death. Jean Ann

was represented by counsel for some periods during probate but

often represented herself.

¶4 Husband was represented by counsel. Because the will

devised the entire estate to Jean Ann, husband made statutory

claims for shares of the estate. He claimed a $32,000 family

allowance (FA) and a $32,000 exempt property allowance (EPA).2

See §§ 15-11-403, -404, C.R.S. 2018. He also petitioned for a

supplemental elective share of the marital property3 pursuant to

sections 15-11-201 to -211, C.R.S. 2018.

2 Husband also filed a couple of small claims irrelevant to this appeal, each for less than $1000. 3 The term “marital property,” in this context, is different from

marital property in a divorce proceeding. Here, the term includes property from the entire augmented estate, which includes property acquired before marriage. Compare In re Marriage of Seewald, 22 P.3d 580, 586 (Colo. App. 2001) (In dividing marital property for divorce, property is considered marital if “acquired during the

2 ¶5 After several months without a response to his claims,

husband petitioned the district court to remove Jean Ann and

appoint a successor PR. After a hearing, the court ordered her

removal, finding that it was in the best interest of the estate to

proceed “without the burden of mutual rancor and distrust evident

at the hearing.” The court appointed Joseph D. Findley as the

successor PR.

¶6 Findley appraised the value of the Fort Collins home at

$325,000. He moved for an order to approve selling the half owned

by the estate to husband. Husband’s payment for the purchase

price of $162,500 was to be paid with (1) a credit of $64,000 from

probate estate funds for his FA and EPA claims; (2) a credit of

$50,000 from probate estate funds for his “statutory minimum

elective-share”; and (3) $48,500 cash. The district court approved

the sale. As of the final accounting — the only accounting in the

record — $48,500 was the only asset in the estate. The court

granted a final settlement of the estate.

marriage and subject to distribution.”), with § 15-11-203, C.R.S. 2018 (defining property constituting an augmented estate to include the surviving spouse’s property and delineating percentages for “the martial-property portion of the augmented estate” depending on the length of the marriage).

3 ¶7 Jean Ann appeals, pro se. Because she is representing

herself, we liberally construe her appeal to raise two contentions of

error. First, she contends that the court erroneously credited

husband with an additional $50,000 in elective-share funds to

which he was not entitled. And second, she contends that the

district court erred by permitting the successor PR and husband’s

attorney to appear in the case despite conflicts of interest. We agree

with the first contention, and we do not address the second because

it was not preserved.

II. Husband’s Elective Share

¶8 Jean Ann filed an objection to husband’s petition for an

elective share and his FA and EPA claims. She calculated his

elective share of fifty percent of the known augmented estate and

argued that the elective share had been fully satisfied by the marital

assets he maintained and received through a nonprobate transfer

(the Wyoming cabin). See §§ 15-11-202 to -208, C.R.S. 2018. She

further argued that the FA and EPA claims had been fully satisfied.

¶9 Husband responded that (1) he was entitled to a minimum

elective share of $50,000; and (2) the FA and EPA claims “are not

charged against but are in addition to the elective-share and

4 supplemental elective-share amounts.” § 15-11-202(3), C.R.S.

2018. On the second point, he asked for a determination as a

matter of law.

¶ 10 Jean Ann replied, as relevant here, that “[t]he minimum

elective-share is not applicable in this case because . . . [husband]

has received far more than $50,000.”

¶ 11 The district court issued an order determining that husband’s

rights to a FA and EPA were “in addition to, and apart from his

right to a spousal elective-share.” That order is not on appeal, and

the court did not address in that order whether a supplemental

minimum elective share is applicable to the Cloos estate.

¶ 12 Yet, as noted, the district court approved the sale of the

estate’s half of the Fort Collins house to husband for $48,500, after

crediting him with $50,000 toward the house for his “minimum

elective-share,” effectively agreeing that husband was entitled to a

“supplemental elective-share” of $50,000 in addition to his other

surviving spouse claims.

A. Preservation

¶ 13 Husband asserts that Jean Ann failed to preserve this issue

because she did not object to the order of final settlement or the

5 order approving the sale of the Fort Collins house. We disagree.

Jean Ann raised and gave the district court the chance to rule on

the application of the supplemental elective share as noted above.

Moreover, during discussion of the house sale, and while appearing

before the court pro se, Jean Ann argued that husband’s cash price

was originally $99,000 but had been “switched” to $48,000.4

B. Standard of Review and Applicable Law

¶ 14 We review de novo questions of law concerning the

construction and application of the Colorado Probate Code. Beren

v. Beren, 2015 CO 29, ¶ 11. “Our primary duty in construing

statutes is to give effect to the intent of the General Assembly,

looking first to the statute’s plain language.” Vigil v. Franklin, 103

P.3d 322, 327 (Colo. 2004).

¶ 15 The Colorado statutes governing the elective share of a

surviving spouse are modeled after part 2 of the Uniform Probate

Code (Unif. Law Comm’n 2010) (UPC). See In re Estate of Gadash,

2017 COA 54, ¶ 21. Two theories of inheritance for a surviving

4 We realize that the exact numbers should be $98,500 and $48,500 and assume that Jean Ann’s pro se argument included a rounding error.

6 spouse inform the UPC: the partnership theory and the support

theory. See UPC art. II, pt. 2 gen. cmt.

¶ 16 First, the partnership theory of marriage “recognizes that both

partners have contributed to the accumulated estate.” In re Estate

of Antonopoulos, 993 P.2d 637, 642 (Kan. 1999) (also applying the

UPC).

The general effect of implementing the partnership theory in elective-share law is to increase the entitlement of a surviving spouse in a long-term marriage in cases in which the marital assets were disproportionately titled in the decedent’s name; and to decrease or even eliminate the entitlement of a surviving spouse in a long-term marriage in cases in which the marital assets were more or less equally titled or disproportionately titled in the surviving spouse’s name.

UPC art. II, pt. 2 gen. cmt. Applying this theory, a surviving

spouse, regardless of the contents of a decedent spouse’s will, may

elect to take a statutory share of the combined marital assets, also

known as the “augmented estate.” § 15-11-202(1). The augmented

estate is the sum of the value of all property from (1) the decedent’s

net probate estate; (2) the decedent’s nonprobate transfers to

others; (3) the decedent’s nonprobate transfers to the surviving

spouse; and (4) the surviving spouse’s property and nonprobate

7 transfers to others. § 15-11-203, C.R.S. 2018. If married to the

decedent for ten years or more, a surviving spouse may claim an

elective share of fifty percent of the augmented estate (a standard

elective share). Id.

¶ 17 Second, the support theory of marriage “recognizes that during

their joint lives, spouses owe each other mutual duties of support,

and these duties continue in some form after death in favor of the

survivor, as a claim on the decedent spouse’s estate.”

Antonopoulos, 993 P.2d at 642. Applying this theory, “[i]f the

survivor’s assets are less than the [$50,000] minimum, then the

survivor is entitled to whatever additional portion of the decedent’s

estate is necessary, up to 100 percent of it, to bring the survivor’s

assets up to that minimum level.” UPC art. II, pt. 2 gen. cmt.

¶ 18 Section 15-11-202(2)(a) implements the support rationale by

providing for a supplemental elective share if the surviving spouse’s

assets are less than $50,000. As relevant here, the statute provides

as follows:

If the sum of the [values of the surviving spouse’s property, decedent’s nonprobate transfers to the surviving spouse], and that part of the elective-share amount payable from the decedent’s net probate estate . . . is less

8 than fifty thousand dollars, the surviving spouse is entitled to a supplemental elective- share amount equal to fifty thousand dollars, minus the sum of [those] amounts described . . . .

Id. (emphasis added).

C. Analysis

¶ 19 A standard elective share is based on the value of the

augmented estate — the combined marital assets — not the value of

assets transferred to a surviving spouse upon a decedent’s death.

One purpose for computing the elective share from the augmented

estate is “to prevent the surviving spouse from electing to a share of

the probate estate when the spouse has received a fair share of the

total wealth of the decedent either during the lifetime of the

decedent or at death by life insurance, joint tenancy assets, and

other nonprobate arrangements.” In re Estate of Fries, 782 N.W.2d

596, 601 (Neb. 2010).

¶ 20 The UPC and the plain language of section 15-11-202(2)(a)

implement that purpose by providing a supplement to the standard

elective share only in cases where the surviving spouse’s share of

the augmented estate is so small that the surviving spouse would

be left with less than $50,000 of assets after the estate distribution.

9 In other words, a surviving spouse married for ten years or more is

statutorily entitled to an elective share of marital assets equal to (1)

fifty percent of the augmented estate (standard elective share) or (2)

$50,000 (supplemental elective share), whichever is greater. In

satisfying the $50,000 amount, the surviving spouse’s own title-

based ownership interests count first; included in the survivor’s

assets for this purpose are amounts transferred to the survivor at

the decedent’s death and amounts owing to the survivor from the

decedent’s estate under the standard-elective-share formula

discussed above. UPC art. II, pt. 2 gen. cmt.

¶ 21 In this case, husband’s share of marital assets in real estate

interests alone far exceeded $50,000 because he owned half of the

Fort Collins house (appraised at $325,000) and all of the Wyoming

cabin (assessed at $277,000). Therefore, husband is not entitled to

a supplemental elective share of the estate, and it was error to

credit him with a supplemental $50,000 of probate estate funds

toward his purchase of the Fort Collins house. Accordingly, we

reverse the order approving the final settlement of the estate and

remand the case to the district court to recalculate the amounts

10 due from husband to the estate for the purchase of the Fort Collins

house.

¶ 22 We are unable, however, to ascertain whether husband may be

entitled to any probate assets for the standard elective share

because the record does not contain a complete accounting of the

estate. Specifically, there is no calculation of the augmented estate

at the time of the decedent’s death. See Beren, ¶ 2 (The Colorado

Probate Code “fixes the value of the property comprising the

augmented estate on the decedent’s date of death.”). While it

appears from the limited information in the record that husband

held well over fifty percent of the augmented estate, and was thus

not entitled to any further assets from the probate estate, we

perceive no evidence that the successor PR calculated either the

actual value of the augmented estate or the percentage held by

husband. Thus, we cannot be sure that husband was not entitled

to any standard-elective-share credit toward the house.

¶ 23 Accordingly, in addition to the directions on remand set forth

above, we remand to the district court for a determination of (1)

whether husband held less than half of the augmented estate upon

the decedent’s death, and would thus be entitled to any of the

11 probate estate as an elective share; (2) what amount, if any, to

which he would be entitled; and (3) the resulting amount of funds, if

any, husband must repay the estate.

III. Conflicts of Interest

¶ 24 Acting pro se during probate, Jean Ann appealed a district

court order to this court, arguing that (1) the successor PR had a

conflict of interest because his firm had represented husband years

before and (2) husband’s attorney had a conflict of interest because

he had participated in the creation of one of the decedent’s wills.

Before that appeal was dismissed, Jean Ann attempted to raise the

issue with the district court.

¶ 25 The district court did not consider the conflicts issue to be

properly before it because the issue was on appeal. Nevertheless,

the court asked Jean Ann to file something in writing telling it what

she was asking it to do, and why her request would be “appropriate

under the law and the facts.” Although this court dismissed Jean

Ann’s first appeal without prejudice, Jean Ann did not submit

anything in writing to the district court regarding the alleged

conflicts of interest.

12 ¶ 26 We decline to address this issue because it was not properly

preserved for review. See O’Quinn v. Baca, 250 P.3d 629, 631 (Colo.

App. 2010).

IV. Conclusion

¶ 27 We reverse the order of final settlement and remand the case

for further proceedings. The district court may take additional

evidence and argument, and it may order further relief and enter a

final judgment consistent with this opinion.

JUDGE BERGER and JUDGE KAPELKE concur.