     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
