C.R.S. § 15-11-104 - Requirement of survival by one hundred twenty hours - individual gestation

• Cite as: C.R.S. § 15-11-104

(1) For purposes of intestate succession and exempt property, and except as otherwise provided in paragraph (b) of this subsection (1), the following rules apply:

(a) An individual born before a decedent's death who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period.

(b) An individual in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.

(2) This section is not to be applied if its application would result in a taking of intestate estate by the state under section 15-11-105.

Cite as C.R.S. § 15-11-104

History: L. 94: Entire part R&RE, p. 978, § 3, effective July 1, 1995. L. 2009: Entire section amended, <actcitation href="" statecd="CO" actaltid="310" sessionyear="2009" description="Enact Changes To Colorado Probate Code - AN ACT CONCERNING CHANGES TO THE "COLORADO PROBATE CODE"">(HB 09 -1287), ch. 310, p. 1673</actcitation>, § 5, effective July 1, 2010.</note> </notes-history>

Editor's Note:

This section is similar to former §15-11-104 as it existed prior to 1995.

Note:

COMMENT

This section avoids multiple administrations and in some instances prevents the property from passing to persons not desired by the decedent. See Halbach & Waggoner, The UPC's New Survivorship and Antilapse Provisions, 55 Alb. L. Rev. 1091, 1094-1099 (1992). The 120-hour period will not delay the administration of a decedent's estate because Sections 3-302 and 3-307 prevent informal issuance of letters for a period of five days from death. Subsection (b) prevents the survivorship requirement from defeating inheritance by the last eligible relative of the intestate who survives for any period.