Section 15-11-405 - Source, determination, and documentation(1)(a)(I) If the estate is otherwise sufficient, property specifically devised or disposed of by memorandum under section 15-11-513 to any person other than a person entitled to exempt property may not be used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians of minor children, or dependent children who are adults may select property of the estate as their exempt property. The personal representative may make these selections if the surviving spouse, the dependent children, or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property allowance. Prior to January 1, 2012, the personal representative may determine the family allowance in a lump sum not exceeding twenty-four thousand dollars or periodic installments not exceeding two thousand dollars per month for one year and may disburse funds of the estate in payment of the family allowance. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may provide a family allowance other than that which the personal representative determined or could have determined.(II) If the estate is otherwise sufficient, property specifically devised or disposed of by memorandum under section 15-11-513 to any person other than a person entitled to exempt property may not be used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians of minor children, or dependent children who are adults may select property of the estate as their exempt property. The personal representative may make these selections if the surviving spouse, the dependent children, or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property allowance. On and after January 1, 2012, the personal representative may determine the family allowance in a lump sum not exceeding thirty thousand dollars or periodic installments not exceeding two thousand five hundred dollars per month for one year and may disburse funds of the estate in payment of the family allowance. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may provide a family allowance other than that which the personal representative determined or could have determined.(b) The dollar amount stated in subparagraph (I) or (II) of paragraph (a) of this subsection (1) shall be increased or decreased based on the cost of living adjustment as calculated and specified in section 15-10-112; except that, when the increase in the dollar amount stated in subparagraph (II) of paragraph (a) of this subsection (1), as enacted in Senate Bill 11-016, enacted in 2011, takes effect, the next regularly scheduled cost of living adjustment will be suspended for one year.(2) If the right to an elective-share is exercised on behalf of a surviving spouse who is an incapacitated person, the personal representative may add any unexpended portions payable under the exempt property and family allowance to the trust established under section 15-11-206 (2).(3) No exempt property or family allowance shall be payable unless the person entitled to payment thereof requests such payment within six months after the first publication of notice to creditors for filing claims which arose before the death of the decedent, or within one year after the date of death, whichever time limitation first expires. The court may extend the time for presenting such request as it sees fit for cause shown by the person entitled to payment before the time limitation has expired; except that the time for presenting the request shall not be extended beyond two years after the date of death. The request shall be made to the personal representative, or, if none is appointed, to any other person having possession of the decedent's assets. A request on behalf of a minor or dependent child may be made by the child's guardian or other person having his or her care and custody.L. 94: Entire part R&RE, p. 996, § 3, effective 7/1/1995. L. 96: (1) amended, p. 658, § 7, effective July 1. L. 2002: (1) amended, p. 652, § 6, effective July 1. L. 2009: (1) amended, (HB 09 -1287), ch. 310, p. 1682, § 11, effective 7/1/2010. L. 2011: (1) amended, (SB 11 -016), ch. 77, p. 212, § 2, effective August 10.This section is similar to former § 15-11-404 as it existed prior to 1995.
COMMENT
Scope and Purpose of 1990 Revision. As originally adopted in 1969, the maximum family allowance the personal representative was authorized to determine without court order was a lump sum of $6,000 or periodic installments of $500 per month for one year. To adjust for inflation, the amounts were increased in 1990 to $18,000 and $1,500 respectively and in 2008 to $22,500 and $2,250. The dollar amount in this section is subject to annual cost-of-living adjustments under Section 1-109.
A new subsection (b) was added to provide for the case where the right to an elective share is exercised on behalf of a surviving spouse who is an incapacitated person. In that case, the personal representative is authorized to add any unexpended portions under the homestead allowance, exempt property, and family allowance to the custodial trust established by Section 2-212(b).
If Domiciliary Assets Insufficient. Note that a domiciliary personal representative can collect against out of state assets if domiciliary assets are insufficient.
Cross References. See Sections 3-902, 3-906, and 3-907.
Historical Note. This Comment was revised in 1993 and 2008.
For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101.