CO Code § 15-11-803 (2021)
2021 Colorado Code|Title 15 - Probate, Trusts, and Fiduciaries|Article 11 - Intestate Succession and Wills|Part 8 - General Provisions Concerning Probate and Nonprobate Transfers|§ 15-11-803. Effect of Homicide on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations

  Definitions. As used in this section, unless the context otherwise requires:   “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.    “Felonious killing”, except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-3-102 to 18-3-104, C.R.S.    “Governing instrument” means a governing instrument executed by the decedent.    “Killer” is any individual who has committed a felonious killing.    “Revocable”, with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself or herself in place of his or her killer and or the decedent then had capacity to exercise the power.       Forfeiture of statutory benefits. An individual who feloniously kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective-share, an omitted spouse's or child's share, the decedent's homestead exemption under section 38-41-204, C.R.S., exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his or her intestate share.    Revocation of benefits under governing instruments. The felonious killing of the decedent:   Revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and    Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common.       Effect of severance. A severance under paragraph (b) of subsection (3) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.    Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.    Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrong.    Felonious killing; how determined - time limitations on civil proceedings.Civil proceedings.Time limitations on civil proceedings.Judgment of conviction.   Criminal proceedings. After all right to appeal has been waived or exhausted following the entry of a judgment of conviction establishing criminal accountability for the felonious killing of the decedent, such judgment conclusively establishes the convicted individual as the decedent's killer for purposes of this section.    Civil proceedings. Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent's killer for purposes of this section.    Time limitations on civil proceedings.   A petition brought under paragraph (b) of this subsection (7) may not be filed more than three years after the date of the decedent's death.    Notwithstanding any provision of subparagraph (I) of this paragraph (c) to the contrary, if a criminal proceeding is commenced in a court of this state or in another jurisdiction against an individual for the felonious killing of the decedent, a petition brought under paragraph (b) of this subsection (7) may be filed so long as the petition is filed no later than one year after all right to appeal has been waived or exhausted following an entry of a judgment of conviction, or a dismissal, or an acquittal in the criminal proceeding. However, if the death and the possible culpability of the slayer for the felonious slaying of the decedent is not known to the petitioner within the three-year period of limitations established pursuant to subparagraph (I) of this paragraph (c), the accrual of the action under paragraph (b) of this subsection (7) and the possibility of the tolling of the running of the three-year period of limitation under subparagraph (I) of this paragraph (c) shall be determined according to the principles of accrual and tolling established by case law with respect to similar limitations established under section 13-80-108, C.R.S.       Judgment of conviction. For the purposes of this subsection (7), a “judgment of conviction” includes a judgment of conviction on a plea of guilty or nolo contendere, or a judgment of conviction on a verdict of guilty by the court or by a jury.       Protection of payers and other third parties.   A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payer or other third party has received written notice as described in paragraph (b) of this subsection (8). A payer or other third party shall have no duty or obligation to make any determination as to whether or not the decedent was the victim of a felonious killing or to seek any evidence with respect to any such felonious killing even if the circumstances of the decedent's death are suspicious or questionable as to the beneficiary's participation in any such felonious killing. A payer or other third party is only liable for actions taken two or more business days after the payer or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (8) shall not be sufficient to impose liability on a payer or other third party for actions taken pursuant to the governing instrument.    The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. The written notice shall be mailed to the payer's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payer or other third party in the same manner as a summons in a civil action.    Upon receipt of the written notice described in paragraph (b) of this subsection (8), a payer or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payer or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payer or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payer or other third party discharges the payer or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court.    The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court.    Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section.       Protection of bona fide purchasers; personal liability of recipient.   A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.    If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.        History. Source: L. 94: Entire part R&RE, p. 1027, § 3, effective July 1, 1995. L. 2011: (7) amended,(SB 11-083), ch. 101, p. 302, § 3, effective August 10.    Editor's note:   This section is similar to former § 15-11-803 as it existed prior to 1995.   ANNOTATION   Law reviews. For article, “Revocation of Wills -- How Accomplished and the Effect”, see 6 Dicta 7 (1929). For article, “Some Will Drafting Pointers on Marital Deduction”, see 27 Dicta 65 (1950). For article, “Probate and Non-probate Distribution Issues in the Case of a Murder/Suicide”, see 17 Colo. Law. 1061 (1988). For article, “Anatomy of an Undue Influence Case”, see 42 Colo. Law. 55 (Apr. 2013).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   This section does not apply in the absence of a conviction. Smith v. Greenburg, 121 Colo. 417 , 218 P.2d 514 (1950).   Thus, where a husband murdered his wife and adopted daughter before committing suicide, one-half of the wife's property held as a tenant in common with her husband passed to her adopted daughter and thence to her husband, while the other half of her property passed directly to her husband. Smith v. Greenburg, 121 Colo. 417 , 218 P.2d 514 (1950).   Husband convicted of murdering his wife may not take. Though convict was the husband of the deceased, he could not have taken any of his wife's property “by descent, devise, inheritance, or any other manner”, because he was convicted of murdering his wife. The petitioners, claiming through convict, would have had no interest in the estate had there been any assets to administer. That the court, in such circumstances, should not have appointed an administrator upon their application is clear. Rosenboom v. Cline, 90 Colo. 1 , 6 P.2d 453 (1931).   For purposes of inheritance, convicted killer of decedent must be treated as having predeceased the decedent, and proceeds of life insurance policies pass directly to named contingent beneficiary as successor-owner. Seidlitz v. Eames, 753 P.2d 775 (Colo. App. 1987).   Convicted killer of spouse may not recover life insurance proceeds. If a court of competent jurisdiction finds by a preponderance of the evidence that a beneficiary of a life insurance policy is guilty of first or second-degree murder or manslaughter of his spouse, the named insured, the killer, may not recover under that policy. Bernstein v. Rosenthal, 671 P.2d 979 (Colo. App. 1983).   The term “kills” as used in this section is not to be construed narrowly. It encompasses anyone who causes the death of another, as either principal or accessory, and does not imply actual delivery of the fatal blows. In re Estate of Walker, 847 P.2d 162 (Colo. App. 1992).   Trial court did not err in determining that decedent's death was caused by a felonious killing and that the statutory cap on noneconomic damages therefore did not apply. The language, “[n]otwithstanding the status or disposition of a criminal proceeding”, is broad enough to allow a court of competent jurisdiction to make a civil determination whether the elements of felonious killing have been established by a preponderance of the evidence, even where the person was acquitted or was convicted of a lesser offense, or where no criminal proceeding was ever initiated. Estate of Wright ex rel. Wright v. United Serv. Auto. Assn., 53 P.3d 683 (Colo. App. 2001).   This section does not apply to immunize insurers when the guilt of a beneficiary is established after an insurer's payment of policy proceeds. Instead, a court must apply a negligence standard to the insurer's conduct in paying insurance proceeds to the insured's killer. Lunsford v. W. States Life Ins. Co., 908 P.2d 79 (Colo. 1995) (decided under law in effect prior to the 1994 repeal and reenactment).   This section does not obligate law firm to return the proceeds of decedent wife's life insurance policy held in a client trust account as a retainer for representing defendant in a criminal prosecution for the murder of decedent, or render the firm liable for their expenditure, but rather the firm may continue to earn those funds in accordance with their fee agreement. Where funds held by a law firm in a client trust account as a retainer represent a disposition of property covered by subsection (3), they also fall within the ambit of subsection (9)(a)'s protection, which protects those funds from disgorgement. In re Estate of Feldman, 2019 CO 62, 443 P.3d 66.