Statute Limits But Does Not Supersede The Equitable Power Of The Court To Adjust Elective Share

After protracted litigation over the surviving spouse’s elective share, the trial court fixed the amount of the elective share and made an additional equitable award to the surviving spouse based on the increase in value of the estate assets and the income earned by the estate during the ten years of litigation. The intermediate Colorado appellate court reversed, holding that under the Colorado elective share statute, the court has no equitable authority to modify the elective share amount which must be calculated as of the date of death of the deceased spouse.

In Beren v. Beren, the Colorado Supreme Court reversed and remanded, holding that the statutory definition of the elective share as a pecuniary amount calculated as of the date of death supplants the court’s general equitable authority which supplements the provisions of the probate code and prevents an increase in the amount based on appreciation of and income earned by estate assets, but does allow for equitable adjustments based on excess administrative costs and other losses due to protracted litigation.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.