Surviving Spouse Rights

What happens if your spouse dies without a Will or Trust? Does the surviving spouse receive the entire estate? The answer is often and surprisingly “no.”


First, the surviving spouse is usually entitled to two claims, also known as allowances.

(1) Exempt Property and (2) Family Allowance. Each of these claims are valued at $35,000 in 2020 for a total of $70,000. Regarding family allowance, some Colorado Judges are denying these claims if there are no minor or dependent children. Requesting these allowances changes from county to county in Colorado and only an experienced probate litigation attorney knows this.

Entire Estate

Second, how much a surviving spouse receives depends on the family members of the person who recently died (the decedent). If there are no children/grandchildren or parents of the decedent, the surviving spouse can receive the entire estate. The surviving spouse can also receive the entire estate if all of the decedent’s children/grandchildren are also the same children/grandchildren of the surviving spouse. Basically, this means if the decedent’s parents are not alive and the decedent’s children/grandchildren are also the surviving spouse’s children/grandchildren, the surviving spouse can still receive the entire estate.

Surviving Spouse Rights

$300,000 + 75%

            If the decedent died with a surviving parent but no children/grandchildren, the surviving spouse gets $300,000 plus 75% of the estate.

$225,000 + 50%

            If the decedent’s children are the same children of the surviving spouse but the surviving spouse also had children from another relationship, the surviving spouse receives $225,000 plus 50% of the estate.

$150,000 + 50%

            If the decedent had children/grandchildren that are not the children/grandchildren of the surviving spouse, the surviving spouse receives $150,000 plus 50% of the estate.

            Bear in mind that the dollar amounts in this explanation change year to year. Additionally, the explanation of simplified terms (such as descendant being specified as a “children/grandchildren”) are used to explain these typical scenarios more easily. Please consult with an experienced attorney who specializes in estate and probate litigation if you are involved in a situation like this. Contact Rossi Law if you wish to learn more regarding surviving spouse rights.