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In re Estate of Dowdy.

2021 COA 136. No. 20CA1323.  Probate—Family Allowance—CRS § 15-11-404.

November 4, 2021

Dowdy died testate and was survived by his wife Mary, six adult children, and one predeceased child whose share went to her children. The will devised 10 acres of an 80-acre parcel of land to each of his children and 10 acres to his wife. The remainder of the estate was “to be dispersed, disposed or otherwise handled by [his] Personal Representative.”

Before Daniel was formally appointed as personal representative, Mary timely filed a request for, among other things, a family allowance. Daniel filed a notice of disallowance for the claim. The district court relied on CRS § 15-11-404(1) to find that Mary did not qualify for a family allowance because her husband had no minor or dependent children.

On appeal, Mary and Daniel contended that the district court erred in construing CRS § 15-11-404(1) and maintained that a surviving spouse may be awarded a family allowance even when the decedent is not survived by minor or dependent children. The Court of Appeals interpreted the family allowance statute, CRS § 15-11-404, and concluded that it creates three separate categories of potential beneficiaries: (1) the decedent’s surviving spouse; (2) the decedent’s minor children; and (3) the decedent’s dependent children. Accordingly, a surviving spouse is entitled to receive a family allowance where, as here, the decedent has no minor or dependent children. Therefore, the district court abused its discretion.

The order was reversed and the case was remanded for the determination and award of a family allowance.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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