§ 15-11-302 — Omitted children

Colorado § 15-11-302

• Jurisdiction: Colorado
• Title 15: Probate,
• Art.: Intestate Succession and Wills

Text

(1) Except as provided in subsection (2) of this
section, if a testator becomes a parent to a child after the execution of the
testator's will and fails to provide in the will for the child, the omitted child receives
a share in the estate as follows:

(a) If the testator had no child living when the testator executed the will, the
omitted child receives a share in the estate equal in value to that which the child
would have received had the testator died intestate, unless the will devised all or
substantially all of the estate to another parent of the omitted child and that other
parent survives the testator and is entitled to take under the will.

(b) If the testator had one or more children living when the testator executed
the will, and the will devised property or an interest in property to one or more of
the then living children, the omitted child is entitled to share in the testator's estate
as follows:

(I) The portion of the testator's estate in which the omitted child is entitled to
share is limited to devises made to the testator's then living children under the will.

(II) The omitted child is entitled to receive the share of the testator's estate,
as limited in subsection (1)(b)(I) of this section, that the child would have received
had the testator included all omitted children with the children to whom devises
were made under the will and had given an equal share of the estate to each child.

(III) To the extent feasible, the interest granted the omitted child under this
section must be of the same character, whether equitable or legal, present or
future, as that devised to the testator's then living children under the will.

(IV) In the satisfaction of a share provided by this subsection (1)(b), devises to
the testator's children who were living when the will was executed abate ratably. In
abating the devises of the then living children, the court shall preserve to the
maximum extent possible the character of the testamentary plan adopted by the
testator.

(2) Neither subsection (1)(a) of this section nor subsection (1)(b) of this
section applies if:

(a) It appears from the will that the omission was intentional; or

(b) The testator provided for the omitted child by transfer outside the will
and the intent that the transfer be in lieu of a testamentary provision is shown by
the testator's statements or is reasonably inferred from the amount of the transfer
or other evidence.

(3) If at the time of execution of the will the testator fails to provide in the
will for a living child solely because the testator believes the child to be dead, the
child is entitled to share in the estate as if the child were an omitted child.

(4) In the satisfaction of a share provided by subsection (1)(a) of this section,
devises made by the will abate under section 15-12-902.

Legislative History

Source: L. 94: Entire part R&RE, p. 993, � 3, effective July 1, 1995. L. 2022: (1), (2) introductory portion, (2)(b), (3), and (4) amended, (SB 22-092), ch. 60, p. 276, � 9, effective August 10.