of King

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
May 23, 2019

2019COA82

No. 18CA0541, Estate of King — Probate — Premarital Will —
Entitlement of Spouse — Omitted Spouse Statute

In this probate proceeding, a division of the court of appeals

considers whether a surviving spouse is precluded from claiming a

portion of a decedent’s estate under section 15-11-301(1)(c), C.R.S.

2018, of the omitted spouse statute. The division concludes that

the language of section 15-11-301(1)(c) grants the lower court the

authority to reasonably infer the decedent’s intent when sufficient

evidence is produced by the proponents of the will that the

surviving spouse has been provided for. In this case, the division

concludes that the lower court properly inferred the decedent’s

intent to provide for his surviving spouse outside his will based on,

among other factors, transfers totaling $4,052,000.00.
COLORADO COURT OF APPEALS 2019COA82

Court of Appeals No. 18CA0541
Arapahoe County District Court No. 16PR30695
Honorable H. Clay Hurst, Magistrate

In re the Estate of Mark M. King, deceased.

Julie M. King,

Appellant,

v.

Carylyn K. Bell, as Personal Representative of the Estate of Mark M. King;
Michael McCandish King; and Colton McCandish King,

Appellees.

ORDER AFFIRMED

Division III
Opinion by JUDGE ROMÁN
Webb and Freyre, JJ., concur

Announced May 23, 2019

Jones & Keller, P.C., G. Stephen Long, Denver, Colorado, for Appellant

Springer and Steinberg, P.C., Jeffrey A. Springer, Craig L. Pankratz, Denver
Colorado, for Appellee Carylyn K. Bell

Brownstein Hyatt Farber Schreck, LLP, Carrie E. Johnson, Denver, Colorado,
for Appellees Michael McCandish King and Colton McCandish King
¶1 This appeal presents a probate question of first impression in

Colorado: Does the omitted spouse statute, section 15-11-301(1)(c),

C.R.S. 2018, preclude a surviving spouse from claiming an intestate

share of the decedent’s estate where the decedent did not mention

the surviving spouse of ten months in his will but did leave her

$4,000,000 in life insurance proceeds and $52,000 in joint bank

accounts? Applying section 15-11-301, we conclude that the

answer is yes. Therefore, we affirm.

I. Background

¶2 Julie M. King (surviving spouse) filed a “Petition for an Omitted

Spouse Share,” contending that she was unintentionally

disinherited from the estate of Mark M. King (decedent) and,

therefore, entitled to “$163,000.00 (indexed for inflation) . . . plus

50% of the balance of the estate.” The personal representative,

decedent’s sister Carylyn K. Bell, and decedent’s children, Michael

McCandish King and Colton McCandish King (collectively, the

estate), opposed the petition, arguing that surviving spouse’s

omission was intentional because decedent provided for her outside

1
 of the will — namely, through $4,462,806 she received in life

insurance proceeds and joint bank accounts. 1

¶3 The magistrate held an evidentiary hearing. Following the

hearing, the magistrate entered a written order regarding the

Petition for an Omitted Spouse Share. The magistrate found the

following.

¶4 Decedent established his estate plan in 2000. In doing so, he

created a pourover will and the Mark M. King Revocable Trust.

Decedent also executed three codicils to the will and amended the

trust three times.

¶5 In May 2015, decedent and his first wife divorced. Decedent

and surviving spouse began dating, and by July 2015 decedent

regarded surviving spouse as his “partner.” On July 27, 2015,

decedent obtained a $5,000,000 life insurance policy and

designated surviving spouse, then known as Julie Pelletier, to

1 The estate also argued that decedent’s retirement plans, which
went to surviving spouse, totaling $410,806, were a transfer that
should be included as proof that surviving spouse’s omission was
intentional. Because the magistrate’s order, as will be seen, did not
include the retirement plans in its ultimate conclusion, neither do
we.
2
 receive $4,000,000 of the policy and another friend, Jana Olsen, to

receive the other $1,000,000.

¶6 Decedent and surviving spouse married six weeks later, on

September 16, 2015. Decedent did not amend his will or trust

documents.

¶7 But, eight months later, on May 19, 2016, decedent did amend

the $4,000,000 life insurance policy to reflect his new spouse.

Specifically, he wrote to the Northwestern Mutual Insurance

Company about amending the life insurance policy:

I just looked at insurance summary and it was
not clear that my Wife Julie Michelle King is
the beneficiary of the $4mm of the $5mmm
policy. First it shows her maiden name of
Pelletier but second does not specify her
allocation of 80% of the policy. Can you please
correct her name change and send a policy
that provides that she is beneficiary, Thanks
Mark King.

Decedent passed away two months later.

¶8 In addition to the $4,000,000 life insurance policy, surviving

spouse received about $52,000 contained in joint bank accounts

3
 and $410,806 from decedent’s retirement plans. 2 In total, surviving

spouse received $4,462,806. Conversely, according to decedent’s

will, eighty-five percent of decedent’s estate poured into the Mark

M. King Revocable Trust for his children and fifteen percent went to

other family members and charity. 3

¶9 Based on these findings, the magistrate concluded that

surviving spouse was not an omitted spouse. This appeal followed.

See C.R.M. 7(b).

2 The magistrate’s order stated that “[n]otwithstanding the fact that
[surviving spouse] received the retirement funds in the amount of
$410,806.00,” the amount of money surviving spouse received was
“substantial.” It is unclear to us whether the magistrate made a
determination as to whether this money constituted a “transfer” for
purposes of section 15-11-301(1)(c), C.R.S. 2018, or simply chose
not to use it within his calculations of the amount surviving spouse
received. In the end, as will be discussed, regardless of whether the
retirement plan amount was considered a transfer by the
magistrate, his findings rested on a permissible inference based on
the life insurance transfer and the value of the joint bank accounts.
3 The parties dispute the net value of decedent’s estate, but the

magistrate did not make a finding of the value. Like the magistrate,
we do not decide the net value of the estate because, as will be
discussed, the net value of the estate is not dispositive of the
question before us.
4
 II. Entitlement of Surviving Spouse: Effect of Premarital Will

A. Standard of Review

¶ 10 We review a judgment entered after a trial to the court as a

mixed question of fact and law. Jehly v. Brown, 2014 COA 39, ¶ 8.

“We defer to the court’s credibility determinations and will disturb

its findings of fact only if they are clearly erroneous and not

supported by the record. . . . We review de novo the court’s

application of the governing legal standards.” Id. (quoting Lawry v.

Palm, 192 P.3d 550, 558 (Colo. App. 2008)).

¶ 11 In addition, we interpret statutes de novo. Sandstead-Corona

v. Sandstead, 2018 CO 26, ¶ 38. In construing a statute, “we look

to the entire statutory scheme in order to give consistent,

harmonious, and sensible effect to all of its parts, and we apply

words and phrases in accordance with their plain and ordinary

meanings.” UMB Bank, N.A. v. Landmark Towers Ass’n, 2017 CO

107, ¶ 22. If the statutory language is clear, we apply it as written

with the goal of effectuating the legislature’s intent. Sandstead-

Corona, ¶ 39; see St. Vrain Valley Sch. Dist. RE-1J v. Loveland, 2017

CO 54, ¶ 11.

5
 B. Section 15-11-301 of the Colorado Probate Code

¶ 12 The omitted spouse statute — section 15-11-301 — of the

Colorado Probate Code is designed to protect the testator’s surviving

spouse against unintentional disinheritance resulting from a

premarital will. The statute reads in part:

If a testator’s surviving spouse married the
testator after the testator executed his or her
will, the surviving spouse is entitled to receive,
as an intestate share, no less than the value of
the share of the estate he or she would have
received if the testator had died intestate as to
that portion of the testator’s estate, if any, that
neither is devised outright to nor in trust for
the benefit of a child of the testator who was
born before the testator married the surviving
spouse and who is not a child of the surviving
spouse nor is so devised to a descendant of
such a child, or passes under section 15-11-
603 or 15-11-604 to such a child or to a
descendant of such a child . . . .

§ 15-11-301(1).

¶ 13 Because the protection afforded by the omitted spouse statute

relates only to unintentional disinheritance, the statute does not

apply if:

(a) It appears from the will or other evidence
that the will was made in contemplation of the
testator’s marriage to the surviving spouse;

6
 (b) The will expresses the intention that it is to
be effective notwithstanding any subsequent
marriage; or

(c) The testator provided for the spouse by
transfer outside the will and the intent that the
transfer be in lieu of a testamentary provision
is shown by the testator's statements or is
reasonably inferred from the amount of the
transfer or other evidence.

§ 15-11-301(1).

¶ 14 If any of these three exceptions apply, the surviving spouse is

not entitled to an omitted spouse share of the testator’s estate.

Conversely, if none of the exceptions apply, the surviving spouse

shall receive an omitted share of the testator’s estate. § 15-11-301.

C. Intent That Transfer be in Lieu of a Testamentary Provision

¶ 15 In Colorado, intent that a transfer was in lieu of a

testamentary provision may be (1) shown by the testator’s

statements; (2) reasonably inferred from the amount of the transfer;

or (3) reasonably inferred from other evidence. § 15-11-301(1)(c).

In this case, the magistrate did not accept any evidence of

decedent’s statements. However, the parties dispute whether the

magistrate could reasonably infer the intent of the decedent from

the amount of the transfer and whether there exists other evidence

7
 of the decedent’s intent. Because no Colorado case has interpreted

Colorado’s omitted spouse statute, we look to decisions from other

states that, like Colorado, have adopted versions of Uniform Probate

Code section 2-301. See, e.g., In re Estate of Becker, 32 P.3d 557,

563 (Colo. App. 2000) (examining other jurisdictions’ interpretation

of the Uniform Probate Code to determine revocation by divorce).

Indeed, section 15-11-301 of the Colorado Probate Code is identical

to the corresponding section 2-301 of the Uniform Probate Code.

Unif. Probate Code § 2-301 (Unif. Law Comm’n 1969) (amended

2010).

¶ 16 When determining whether a transfer was intended to be in

lieu of a testamentary provision, courts in other jurisdictions have

concluded that the important inquiry is not the form in which the

transfer was made, or when the transfer occurred, but rather

whether the transfer was so minimal and made in such a way that

it appears the testator failed to provide for his surviving spouse. In

re Estate of Keeven, 716 P.2d 1224, 1230 (Idaho 1986); Estate of

Christensen v. Christensen, 655 P.2d 646, 650 (Utah 1982).

¶ 17 In Estate of Christensen, the testator’s premarital will left the

bulk of his estate in trust for his granddaughter while his surviving

8
 spouse received the value of corporate stock — a devise left to her,

in the will, before they were married. As part of its analysis, the

Utah Supreme Court established several factors to consider in

determining whether the testator intentionally provided for a

surviving spouse by transfer outside of the will:

(1) the alternative takers under the will, (2) the
dollar value of the testamentary gift to the
surviving spouse, (3) the fraction of the estate
represented by that gift, (4) whether
comparable gifts were made to other persons,
(5) the length of time between execution of the
testamentary instrument and the marriage, (6)
the duration of the marriage, (7) any inter
vivos gifts the testator has made to the
surviving spouse, and (8) the separate property
and needs of the surviving spouse.

Estate of Christensen, 655 P.2d at 650; accord Estate of Keeven, 716

P.2d at 1230-31.

¶ 18 Although Estate of Christensen is factually different from this

case because, there, the transfer occurred within the premarital will

of the testator, we nevertheless find those factors helpful to our

analysis. Indeed, Utah’s omitted spouse statute — Utah Code

Annotated section 75-2-301 (West 2018) — is identical to Colorado

9
 Revised Statutes section 15-11-301. 4 Accordingly, we adopt the

factors articulated in Estate of Christensen and hold that, to

determine whether an omitted spouse is entitled to an intestate

share of an estate when a proponent of the will argues the exception

under section 15-11-301(1)(c) applies, the court should examine the

transfer in light of these factors, to the extent they are addressed by

the evidence. To these factors, we add two additional points.

¶ 19 First, the plain language of section 15-11-301 makes no

distinction between a transfer made to a future spouse in

contemplation of marriage and a transfer made to a future spouse

as a friend or in some other capacity. Rather, the statute requires a

failure by the testator to provide for a surviving spouse in any

capacity.

¶ 20 Second, the amount of the transfer may be considered in

isolation or in relation to the total net probate estate. This is

especially appropriate in Colorado, where intent can be reasonably

4 Utah and Colorado both adopted the original Uniform Probate
Code and subsequently adopted its revisions. Although the Estate
of Christensen court considered the original Uniform Probate Code,
the language at issue in both Estate of Christensen and this case
did not change with the revisions, but was merely re-codified.
10
 inferred from the amount of the transfer. See § 15-11-301(1)(c); see

also In re Estate of Taggart, 619 P.2d 562, 569-70 (N.M. Ct. App.

1980) (evidence supported a conclusion that the decedent’s intent

was to provide for the surviving spouse by creation of joint accounts

and a retirement plan); In re Estate of Knudsen, 342 N.W. 2d 387,

391 (N.D. 1984) (life insurance benefits and joint tenancy

arrangements can constitute “transfers” for the purposes of the

omitted spouse statute); In re Timmerman, 502 S.E.2d 920 (S.C. Ct.

App. 1998) (making no indication of the total value of the testator’s

estate where the transfers to spouse totaled $1,191,000); Estate of

Christensen, 655 P.2d at 650 (the surviving spouse’s gift, which

only constituted four percent of the total value of the estate, was

nevertheless a substantial dollar value considering the short

marriage).

¶ 21 We now apply these principles to the facts of the present case.

D. Application

¶ 22 Surviving spouse first argues that the magistrate

impermissibly shifted the burden of proof to her by requiring her to

show that the “substantial” amount that she received was not

11
 intentionally transferred in lieu of a testamentary provision. We

apply the following burden-shifting test.

¶ 23 First the surviving spouse is required to prove that he or she is

a spouse of the decedent and does not appear in the testamentary

documents. See § 15-11-301(1).

¶ 24 Second, after the surviving spouse proves that he or she falls

under section 15-11-301(1), the burden shifts to the proponent(s) of

the will to establish that one of the exceptions set forth in section

15-11-301(1)(a)-(c) applies. Unif. Probate Code § 2-301 cmt.; see In

re Estate of Beaman, 583 P.2d 270, 274 (Ariz. Ct. App. 1978); Estate

of Christensen, 655 P.2d at 650.

¶ 25 Third, if the proponents of the will have satisfied their burden,

the surviving spouse may present rebuttal evidence that he or she

was not provided for by those transfers. The evidence must be

sufficient to establish that the transfer could not reasonably

represent the testator’s effort to provide for his or her spouse in lieu

of a testamentary provision. Estate of Christensen, 655 P.2d at 650.

¶ 26 Here, surviving spouse demonstrated that she was not

provided for in the will. The burden then shifted to the estate (the

proponents of the will) to present evidence that surviving spouse

12
 was provided for by transfers she received outside of the will, which

it did through evidence of life insurance, joint accounts, and

retirement plan transfers. Surviving spouse then sought to rebut

this evidence by arguing that there was no evidence that decedent

intended those transfers to be in lieu of a testamentary provision.

¶ 27 After considering the evidence, the magistrate concluded that

the amount of life insurance specifically
created and designated for [surviving spouse]
along with the jointly owned checking
account(s) collectively totaling $4,052,000.00
was a substantial monetary transfer that
Decedent intended at that time be provide[d] to
his new spouse outside of his pre-marital
estate plan convincing this court that
[surviving spouse] was not an omitted spouse.

¶ 28 Applying the test we announce today, we conclude that the

record supports the magistrate’s determination that surviving

spouse was not an omitted spouse under section 15-11-301.

Specifically, the $4,000,000 life insurance transfer to surviving

spouse provided six weeks before marriage and later ratified after

marriage supports the permissible inference that decedent intended

the transfer to provide for surviving spouse in lieu of a testamentary

disposition. See Estate of Christensen, 655 P.2d at 650 (including

“the dollar value of the testamentary gift to the surviving spouse”

13
 and “the duration of the marriage” as relevant factors to determine

whether a transfer was provided in lieu of a testamentary

provision); see also Estate of Taggart, 619 P.2d at 569 (considering

the “not insignificant amount” transferred to the surviving spouse

as evidence of intent to transfer in lieu of a testamentary provision).

¶ 29 This is so even though the life insurance transfer designation

was made before decedent and surviving spouse’s marriage. Estate

of Beaman, 583 P.2d at 274 (“The section is designed to guard

against unintentional disinheritance. It does not apply if the will

states an intent to make no provision for a later spouse. Nor does it

apply if before or after the marriage the testator makes some other

provision for the spouse (a living trust, joint tenancy with right of

survivorship, annuity, outright gift, or life insurance payable to the

spouse) if this other provision was to take the place of a provision

by will. The statute makes ‘statements of the testator’ admissible to

show intent, but also permits other evidence to establish this.”)

(citation omitted).

¶ 30 In addition, applying section 15-11-301(1)(c), we conclude that

“other evidence” in the record supports the magistrate’s findings:

14
1. Decedent first executed his will in 2000 and then

executed codicils on three separate occasions modifying

the existing will to account for changes in life

circumstances. Thus, decedent knew how to amend his

will but did not do so after he married surviving spouse.

2. After the marriage, decedent re-designated surviving

spouse — as his spouse, whereas she had been

designated as his “partner” before — as the beneficiary of

a life insurance policy in the amount of $4,000,000.

3. The amount of this transfer was not minimal and

presents the kind of “other evidence” contemplated in the

statute to show intent.

4. Decedent and surviving spouse were married for a short

period of time — ten months.

5. Surviving spouse received an additional $52,000 in

transfers from joint accounts (not to mention decedent’s

retirement plans outside of the will) in addition to the life

insurance proceeds. See Estate of Taggart, 619 P.2d at

569-70; In re Estate of Frandson, 356 N.W.2d 125, 128

(N.D. 1984).

15
¶ 31 For these reasons, we find no error in the magistrate’s findings

that surviving spouse is not an omitted spouse under section 15-

11-301.

¶ 32 In light of this disposition, we do not reach what share of the

estate surviving spouse would have been entitled to had she fallen

under section 15-11-301.

III. Conclusion

¶ 33 The magistrate’s order is affirmed.

JUDGE WEBB and JUDGE FREYRE concur.

16