In re Estate of Cloos , 2018 COA 161 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 15, 2018
2018COA161
No. 17CA1065, In re Estate of Cloos — Probate — Elective-
Share of Surviving Spouse — Supplemental Elective Share
A division of the court of appeals considers whether the
statutory “supplemental elective-share” applies to the distribution
of a probate estate to a disinherited surviving spouse with assets
exceeding $50,000. See § 15-11-202(2), C.R.S. 2018. The division
concludes that the district court erred in allocating $50,000 to the
disinherited spouse under section 15-11-202(2) when the record
showed he held assets worth substantially more than $50,000 and
had received assets worth over $100,000 from the nonprobate
estate.
COLORADO COURT OF APPEALS 2018COA161
Court of Appeals No. 17CA1065
Larimer County District Court No. 15PR30
Honorable Devin R. Odell, Judge
In re the Estate of Irene Mae Cloos, deceased.
Jean Ann Cloos,
Appellant,
v.
Drexel H. Cloos; and Joseph D. Findley, as Personal Representative of the
Estate of Irene Mae Cloos,
Appellees.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE RICHMAN
Berger and Kapelke*, JJ., concur
Announced November 15, 2018
Jean Ann Cloos, Pro Se
Rosenberg, Smith & Zipser, PLLC, Amy K. Rosenberg, Fort Collins, Colorado,
for Appellee Drexel H. Cloos
Kaufman & Findley, PC, Joseph D. Findley, Loveland, Colorado, for Appellee
Joseph D. Findley
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Jean Ann Cloos appeals the final settlement of the estate of
her mother, Irene Mae Cloos. She contends that the district court
erred by allocating $50,000 in “elective-share” funds from the
probate estate to the decedent’s husband of sixty-three years and
Jean Ann’s father, Drexel H. Cloos (husband), and by permitting
conflicts of interest. We reverse the order as to the award of
$50,000 as an elective share and remand for further proceedings.
I. Background
¶2 The decedent died testate, devising her entire estate to Jean
Ann.1 Although the accounting of the estate is not fully developed
in the record, it appears that the decedent owned the following
property on the date of her death:
 one-half of a house in Fort Collins appraised at $325,000
— husband owned the other half, and Jean Ann and
husband both resided there;
 a public employee retirement account of unknown value;
 an undetermined amount of personal property; and
1We refer to the appellant as Jean Ann, rather than Ms. Cloos, to
avoid confusion with the decedent.
1
 a shared cabin in Wyoming with an assessed value of
about $277,000, to which husband held survivorship
rights.
¶3 The decedent’s will nominated Jean Ann as the personal
representative (PR) for the estate, and she was appointed
approximately four months after the decedent’s death. Jean Ann
was represented by counsel for some periods during probate but
often represented herself.
¶4 Husband was represented by counsel. Because the will
devised the entire estate to Jean Ann, husband made statutory
claims for shares of the estate. He claimed a $32,000 family
allowance (FA) and a $32,000 exempt property allowance (EPA).2
See §§ 15-11-403, -404, C.R.S. 2018. He also petitioned for a
supplemental elective share of the marital property3 pursuant to
sections 15-11-201 to -211, C.R.S. 2018.
2 Husband also filed a couple of small claims irrelevant to this
appeal, each for less than $1000.
3 The term “marital property,” in this context, is different from
marital property in a divorce proceeding. Here, the term includes
property from the entire augmented estate, which includes property
acquired before marriage. Compare In re Marriage of Seewald, 22
P.3d 580, 586 (Colo. App. 2001) (In dividing marital property for
divorce, property is considered marital if “acquired during the
2
¶5 After several months without a response to his claims,
husband petitioned the district court to remove Jean Ann and
appoint a successor PR. After a hearing, the court ordered her
removal, finding that it was in the best interest of the estate to
proceed “without the burden of mutual rancor and distrust evident
at the hearing.” The court appointed Joseph D. Findley as the
successor PR.
¶6 Findley appraised the value of the Fort Collins home at
$325,000. He moved for an order to approve selling the half owned
by the estate to husband. Husband’s payment for the purchase
price of $162,500 was to be paid with (1) a credit of $64,000 from
probate estate funds for his FA and EPA claims; (2) a credit of
$50,000 from probate estate funds for his “statutory minimum
elective-share”; and (3) $48,500 cash. The district court approved
the sale. As of the final accounting — the only accounting in the
record — $48,500 was the only asset in the estate. The court
granted a final settlement of the estate.
marriage and subject to distribution.”), with § 15-11-203, C.R.S.
2018 (defining property constituting an augmented estate to include
the surviving spouse’s property and delineating percentages for “the
martial-property portion of the augmented estate” depending on the
length of the marriage).
3
¶7 Jean Ann appeals, pro se. Because she is representing
herself, we liberally construe her appeal to raise two contentions of
error. First, she contends that the court erroneously credited
husband with an additional $50,000 in elective-share funds to
which he was not entitled. And second, she contends that the
district court erred by permitting the successor PR and husband’s
attorney to appear in the case despite conflicts of interest. We agree
with the first contention, and we do not address the second because
it was not preserved.
II. Husband’s Elective Share
¶8 Jean Ann filed an objection to husband’s petition for an
elective share and his FA and EPA claims. She calculated his
elective share of fifty percent of the known augmented estate and
argued that the elective share had been fully satisfied by the marital
assets he maintained and received through a nonprobate transfer
(the Wyoming cabin). See §§ 15-11-202 to -208, C.R.S. 2018. She
further argued that the FA and EPA claims had been fully satisfied.
¶9 Husband responded that (1) he was entitled to a minimum
elective share of $50,000; and (2) the FA and EPA claims “are not
charged against but are in addition to the elective-share and
4
supplemental elective-share amounts.” § 15-11-202(3), C.R.S.
2018. On the second point, he asked for a determination as a
matter of law.
¶ 10 Jean Ann replied, as relevant here, that “[t]he minimum
elective-share is not applicable in this case because . . . [husband]
has received far more than $50,000.”
¶ 11 The district court issued an order determining that husband’s
rights to a FA and EPA were “in addition to, and apart from his
right to a spousal elective-share.” That order is not on appeal, and
the court did not address in that order whether a supplemental
minimum elective share is applicable to the Cloos estate.
¶ 12 Yet, as noted, the district court approved the sale of the
estate’s half of the Fort Collins house to husband for $48,500, after
crediting him with $50,000 toward the house for his “minimum
elective-share,” effectively agreeing that husband was entitled to a
“supplemental elective-share” of $50,000 in addition to his other
surviving spouse claims.
A. Preservation
¶ 13 Husband asserts that Jean Ann failed to preserve this issue
because she did not object to the order of final settlement or the
5
order approving the sale of the Fort Collins house. We disagree.
Jean Ann raised and gave the district court the chance to rule on
the application of the supplemental elective share as noted above.
Moreover, during discussion of the house sale, and while appearing
before the court pro se, Jean Ann argued that husband’s cash price
was originally $99,000 but had been “switched” to $48,000.4
B. Standard of Review and Applicable Law
¶ 14 We review de novo questions of law concerning the
construction and application of the Colorado Probate Code. Beren
v. Beren, 2015 CO 29, ¶ 11. “Our primary duty in construing
statutes is to give effect to the intent of the General Assembly,
looking first to the statute’s plain language.” Vigil v. Franklin, 103
P.3d 322, 327 (Colo. 2004).
¶ 15 The Colorado statutes governing the elective share of a
surviving spouse are modeled after part 2 of the Uniform Probate
Code (Unif. Law Comm’n 2010) (UPC). See In re Estate of Gadash,
2017 COA 54, ¶ 21. Two theories of inheritance for a surviving
4 We realize that the exact numbers should be $98,500 and
$48,500 and assume that Jean Ann’s pro se argument included a
rounding error.
6
spouse inform the UPC: the partnership theory and the support
theory. See UPC art. II, pt. 2 gen. cmt.
¶ 16 First, the partnership theory of marriage “recognizes that both
partners have contributed to the accumulated estate.” In re Estate
of Antonopoulos, 993 P.2d 637, 642 (Kan. 1999) (also applying the
UPC).
The general effect of implementing the
partnership theory in elective-share law is to
increase the entitlement of a surviving spouse
in a long-term marriage in cases in which the
marital assets were disproportionately titled in
the decedent’s name; and to decrease or even
eliminate the entitlement of a surviving spouse
in a long-term marriage in cases in which the
marital assets were more or less equally titled
or disproportionately titled in the surviving
spouse’s name.
UPC art. II, pt. 2 gen. cmt. Applying this theory, a surviving
spouse, regardless of the contents of a decedent spouse’s will, may
elect to take a statutory share of the combined marital assets, also
known as the “augmented estate.” § 15-11-202(1). The augmented
estate is the sum of the value of all property from (1) the decedent’s
net probate estate; (2) the decedent’s nonprobate transfers to
others; (3) the decedent’s nonprobate transfers to the surviving
spouse; and (4) the surviving spouse’s property and nonprobate
7
transfers to others. § 15-11-203, C.R.S. 2018. If married to the
decedent for ten years or more, a surviving spouse may claim an
elective share of fifty percent of the augmented estate (a standard
elective share). Id.
¶ 17 Second, the support theory of marriage “recognizes that during
their joint lives, spouses owe each other mutual duties of support,
and these duties continue in some form after death in favor of the
survivor, as a claim on the decedent spouse’s estate.”
Antonopoulos, 993 P.2d at 642. Applying this theory, “[i]f the
survivor’s assets are less than the [$50,000] minimum, then the
survivor is entitled to whatever additional portion of the decedent’s
estate is necessary, up to 100 percent of it, to bring the survivor’s
assets up to that minimum level.” UPC art. II, pt. 2 gen. cmt.
¶ 18 Section 15-11-202(2)(a) implements the support rationale by
providing for a supplemental elective share if the surviving spouse’s
assets are less than $50,000. As relevant here, the statute provides
as follows:
If the sum of the [values of the surviving
spouse’s property, decedent’s nonprobate
transfers to the surviving spouse], and that
part of the elective-share amount payable from
the decedent’s net probate estate . . . is less
8
than fifty thousand dollars, the surviving
spouse is entitled to a supplemental elective-
share amount equal to fifty thousand dollars,
minus the sum of [those] amounts
described . . . .
Id. (emphasis added).
C. Analysis
¶ 19 A standard elective share is based on the value of the
augmented estate — the combined marital assets — not the value of
assets transferred to a surviving spouse upon a decedent’s death.
One purpose for computing the elective share from the augmented
estate is “to prevent the surviving spouse from electing to a share of
the probate estate when the spouse has received a fair share of the
total wealth of the decedent either during the lifetime of the
decedent or at death by life insurance, joint tenancy assets, and
other nonprobate arrangements.” In re Estate of Fries, 782 N.W.2d
596, 601 (Neb. 2010).
¶ 20 The UPC and the plain language of section 15-11-202(2)(a)
implement that purpose by providing a supplement to the standard
elective share only in cases where the surviving spouse’s share of
the augmented estate is so small that the surviving spouse would
be left with less than $50,000 of assets after the estate distribution.
9
In other words, a surviving spouse married for ten years or more is
statutorily entitled to an elective share of marital assets equal to (1)
fifty percent of the augmented estate (standard elective share) or (2)
$50,000 (supplemental elective share), whichever is greater. In
satisfying the $50,000 amount, the surviving spouse’s own title-
based ownership interests count first; included in the survivor’s
assets for this purpose are amounts transferred to the survivor at
the decedent’s death and amounts owing to the survivor from the
decedent’s estate under the standard-elective-share formula
discussed above. UPC art. II, pt. 2 gen. cmt.
¶ 21 In this case, husband’s share of marital assets in real estate
interests alone far exceeded $50,000 because he owned half of the
Fort Collins house (appraised at $325,000) and all of the Wyoming
cabin (assessed at $277,000). Therefore, husband is not entitled to
a supplemental elective share of the estate, and it was error to
credit him with a supplemental $50,000 of probate estate funds
toward his purchase of the Fort Collins house. Accordingly, we
reverse the order approving the final settlement of the estate and
remand the case to the district court to recalculate the amounts
10
due from husband to the estate for the purchase of the Fort Collins
house.
¶ 22 We are unable, however, to ascertain whether husband may be
entitled to any probate assets for the standard elective share
because the record does not contain a complete accounting of the
estate. Specifically, there is no calculation of the augmented estate
at the time of the decedent’s death. See Beren, ¶ 2 (The Colorado
Probate Code “fixes the value of the property comprising the
augmented estate on the decedent’s date of death.”). While it
appears from the limited information in the record that husband
held well over fifty percent of the augmented estate, and was thus
not entitled to any further assets from the probate estate, we
perceive no evidence that the successor PR calculated either the
actual value of the augmented estate or the percentage held by
husband. Thus, we cannot be sure that husband was not entitled
to any standard-elective-share credit toward the house.
¶ 23 Accordingly, in addition to the directions on remand set forth
above, we remand to the district court for a determination of (1)
whether husband held less than half of the augmented estate upon
the decedent’s death, and would thus be entitled to any of the
11
probate estate as an elective share; (2) what amount, if any, to
which he would be entitled; and (3) the resulting amount of funds, if
any, husband must repay the estate.
III. Conflicts of Interest
¶ 24 Acting pro se during probate, Jean Ann appealed a district
court order to this court, arguing that (1) the successor PR had a
conflict of interest because his firm had represented husband years
before and (2) husband’s attorney had a conflict of interest because
he had participated in the creation of one of the decedent’s wills.
Before that appeal was dismissed, Jean Ann attempted to raise the
issue with the district court.
¶ 25 The district court did not consider the conflicts issue to be
properly before it because the issue was on appeal. Nevertheless,
the court asked Jean Ann to file something in writing telling it what
she was asking it to do, and why her request would be “appropriate
under the law and the facts.” Although this court dismissed Jean
Ann’s first appeal without prejudice, Jean Ann did not submit
anything in writing to the district court regarding the alleged
conflicts of interest.
12
¶ 26 We decline to address this issue because it was not properly
preserved for review. See O’Quinn v. Baca, 250 P.3d 629, 631 (Colo.
App. 2010).
IV. Conclusion
¶ 27 We reverse the order of final settlement and remand the case
for further proceedings. The district court may take additional
evidence and argument, and it may order further relief and enter a
final judgment consistent with this opinion.
JUDGE BERGER and JUDGE KAPELKE concur.
13