NOTE: This bill has been prepared for the signature of the appropriate legislative officers and the Governor. To determine whether the Governor has signed the bill or taken other action on it, please consult the legislative status sheet, the legislative history, or the Session Laws. SENATE BILL 10-199 BY SENATOR(S) Carroll M., Steadman; also REPRESENTATIVE(S) Court. Concerning clarifying revisions to certain provisions of the Colorado probate code. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 2-5-102, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 2-5-102. Inclusions - nonstatutory. (11) There shall be included in the publication of the "Colorado Probate Code" as nonstatutory matter, following each amended or added section, the full text of the official comments to that section contained in the 2008 official text of "Amendments to Uniform Probate Code" issued by the national conference of commissioners on uniform state laws, with any changes in the official comments to correspond to Colorado changes in the "Uniform Probate Code". The comments shall be prepared by the revisor of statutes and approved for publication by the committee on legal services. SECTION 2. 15-10-112 (1) (b), (2), and (3), Colorado Revised Statutes, as they will become effective July 1, 2010, are amended to read: 15-10-112. Cost of living adjustment of certain dollar amounts. (1) As used in this section, unless the context otherwise requires: (b) "Reference base index" means the CPI for the calendar year 2009 2010. (2) The dollar amounts stated in sections 15-11-102, 15-11-201 (2), 15-11-403, and 15-11-405, and 15-12-1201 apply to the estate of a decedent who died during or after 2010, but for the estate of a decedent who died after 2011, these dollar amounts must be increased or decreased if the CPI for the calendar year immediately preceding the year of death exceeds or is less than the reference base index. The amount of any increase or decrease is computed by multiplying each dollar amount by the percentage by which the CPI for the calendar year immediately preceding the year of death exceeds or is less than the reference base index. If any the amount of the increase or decrease produced by the computation is not a multiple of one hundred thousand dollars, then the amount of the increase or decrease is rounded down if it is an increase, or rounded up if it is a decrease, to the next multiple of one hundred thousand dollars, but for the purpose of section 15-11-405, the periodic installment amount is the lump-sum amount divided by twelve. If the CPI for 2009 2010 is changed by the bureau of labor statistics, the reference base index must be revised using the rebasing factor reported by the bureau of labor statistics, or other comparable data if a rebasing factor is not reported. (3) Before February 1, 2011 February 1, 2012, and before February 1 of each succeeding year, the department of revenue shall publish a cumulative list, beginning with the dollar amounts effective for the estate of a decedent who died in 2011 2012 of each dollar amount as increased or decreased under this section. SECTION 3. 15-10-201 (59), Colorado Revised Statutes, is amended to read: 15-10-201. General definitions. Subject to additional definitions contained in the subsequent articles that are applicable to specific articles, parts, or sections, and unless the context otherwise requires, in this code: (59) "Will" includes any codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. "Will" does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. SECTION 4. Part 1 of article 11 of title 15, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 15-11-102.5. Share of designated beneficiary. (1) If the decedent is survived by a person with the right to inherit real or personal property from the decedent in a designated beneficiary agreement executed pursuant to article 22 of this title, the intestate share of the decedent's designated beneficiary is: (a) The entire estate if no descendent of the decedent survives the decedent; or (b) One half of the intestate estate if one or more descendants of the decedent survive the decedent. SECTION 5. The introductory portion to 15-11-103 and 15-11-103 (1) and (7), Colorado Revised Statutes, as they will become effective July 1, 2010, are amended to read: 15-11-103. Share of heirs other than surviving spouse and designated beneficiary. Any part of the intestate estate not passing to the decedent's surviving spouse under section 15-11-102, or to the decedent's surviving designated beneficiary under section 15-11-102.5, or the entire intestate estate if there is no surviving spouse and no surviving designated beneficiary with the right to inherit real or personal property from the decedent through intestate succession, passes in the following order to the individuals who survive the decedent: (1) To a designated beneficiary who was designated by the decedent to be his or her designated beneficiary for purposes of intestate succession pursuant to a designated beneficiary agreement that has been executed and recorded with a county clerk and recorder as provided in article 22 of this title; except that, if the decedent has surviving children, then the designated beneficiary shall receive one-half of the intestate estate and the surviving children shall receive one-half of the intestate estate; (7) If there is no taker under subsections (1) to (6) of this section, but the decedent has: (a) One deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse's descendants per capita at each generation; or (b) More than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants per capita at each generation. SECTION 6. 15-11-118 (3), Colorado Revised Statutes, as it will become effective July 1, 2010, is amended, and the said 15-11-118, as it will become effective July 1, 2010, is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 15-11-118. Adoptee and adoptee's adoptive parent or parents. (2.5) Individual in process of being adopted by second parent. For purposes of subsection (1) of this section, a child who is in the process of being adopted by a second adult in a second-parent adoption when the second adult dies is treated as adopted by the second adult if the child's parent survives the second adult by one hundred twenty hours. (3) Child of assisted reproduction or gestational child in process of being adopted. If, after a parent-child relationship is established between a child of assisted reproduction and a parent under section 15-11-120 or between a gestational child and a parent under section 15-11-121, the child is in the process of being adopted by the parent's spouse or another individual when that spouse or individual dies, the child is treated as adopted by the deceased spouse or individual for the purpose of paragraph (b) of subsection (2) of this section. SECTION 7. 15-11-119 (2.5) (a) and (2.5) (b), Colorado Revised Statutes, as they will become effective July 1, 2010, are amended to read: 15-11-119. Adoptee and adoptee's genetic parents. (2.5) Child of a second-parent adoption. A parent-child relationship exists between an individual who is adopted by a second parent and: (a) The A genetic parent who consented to a second-parent adoption; and (b) The other Another genetic parent who is not a third-party donor, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent. SECTION 8. 15-11-120 (8), Colorado Revised Statutes, as it will become effective July 1, 2010, is amended to read: 15-11-120. Child conceived by assisted reproduction other than child born to gestational carrier. (8) Presumption - birth mother is married or surviving spouse. For the purpose of paragraph (b) of subsection (6) of this section, the following rules apply: (a) If the birth mother is married at the time of conception and no divorce proceeding is then pending, in the absence of clear and convincing evidence to the contrary, her spouse satisfies is presumed to satisfy the requirements of subparagraph (I) or (II) of paragraph (b) of subsection (6) of this section. (b) If the birth mother is a surviving spouse and at her deceased spouse's death no divorce proceeding was pending, in the absence of clear and convincing evidence to the contrary, her deceased spouse satisfies is presumed to satisfy the requirements of subparagraph (II) or (III) of paragraph (b) of subsection (6) of this section. SECTION 9. 15-11-502, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 15-11-502. Execution - witnessed or notarized wills - holographic wills. (5) For purposes of this part 5, "will" does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. SECTION 10. 15-11-503, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 15-11-503. Writings intended as wills. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. SECTION 11. 15-11-701 (1), Colorado Revised Statutes, is amended, and the said 15-11-701 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 15-11-701. Scope. For the purposes of this part 7, the term "governing instrument" shall be as defined in section 15-10-201 (22); except: (1) "Governing instrument" shall not include a deed which that transfers any interest in real property; however, section 15-11-712 shall apply to such deeds. and (3) In the absence of a finding of a contrary intention, the rules of construction in section 15-11-705 apply to a governing instrument executed or republished or reaffirmed on or after July 1, 2010, and the rules of construction under section 15-11-705, as it existed prior to July 1, 2010, apply to a governing instrument executed prior to July 1, 2010, and not republished or reaffirmed after that date. SECTION 12. 15-11-705 (3) and (4), Colorado Revised Statutes, as they will become effective July 1, 2010, are amended to read: 15-11-705. Class gifts construed to accord with intestate succession. (3) Relatives by marriage. Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces, or nephews, are standing alone shall be construed to exclude relatives by marriage. unless: (a) When the governing instrument was executed, the class was then and foreseeably would be empty; or (b) The language or circumstances otherwise establish that relatives by marriage were intended to be included. (4) Half-blood relatives. Terms of relationship in a governing instrument that do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces, or nephews, are standing alone shall be construed to include both types of relationships. SECTION 13. 15-12-203 (1) (b.5), Colorado Revised Statutes, is amended to read: 15-12-203. Priority among persons seeking appointment as personal representative. (1) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order: (b.5) A person nominated given priority to be a personal representative by a power conferred in a designated beneficiary agreement made pursuant to article 22 of this title; SECTION 14. 15-12-703, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 15-12-703. General duties - relation and liability to persons interested in estate - standing to sue. (3.5) A personal representative shall not be surcharged for distributions made that do not take into consideration the possible birth of a posthumously conceived child unless prior to such distribution: (a) The personal representative has received notice or has actual knowledge that a party intends to use an individual's genetic material to create a child or has received written notice that a party may intend to use an individual's genetic material to create a child; and (b) The birth of the child could affect the distribution of the decedent's estate. SECTION 15. 15-12-705 (1) (g) and (1) (h), Colorado Revised Statutes, are amended, and the said 15-12-705 (1) is further amended BY THE ADDITION OF A NEW PARAGRAPH, to read: 15-12-705. Duty of personal representative - information to heirs and devisees. (1) Not later than thirty days after appointment, every personal representative, except any special administrator, shall give information of his or her appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information shall: (g) Indicate that, because a court will not routinely review or adjudicate matters unless it is specifically requested to do so by a beneficiary, creditor, or other interested person, all interested persons, including beneficiaries and creditors, have the responsibility to protect their own rights and interests in the estate in the manner provided by the provisions of this code by filing an appropriate pleading with the court by which the estate is being administered and serving it on all interested persons pursuant to section 15-10-401; and (h) Indicate that all interested parties have the right to obtain information about the estate by filing a demand for notice pursuant to section 15-12-204; and (i) Indicate that any person who has knowledge that a party intends or may intend to use an individual's genetic material to create a child and that the birth of the child could affect the distribution of the decedent's estate should give written notice of such knowledge to the personal representative of the decedent's estate. SECTION 16. 15-12-808, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 15-12-808. Individual liability of personal representative. (5) A personal representative is not individually liable for making distributions that do not take into consideration the possible birth of a posthumously conceived child if the personal representative made the distribution prior to receiving notice or acquiring actual knowledge that: (a) A party intends or may intend to use an individual's genetic material to create a child; and (b) The birth of the child could affect the distribution of the decedent's estate. SECTION 17. 15-16-306, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 15-16-306. Personal liability of trustee to third parties. (7) A trustee is not personally liable for making distributions of property that do not take into consideration the possible birth of a posthumously conceived child unless, prior to the distribution, the personal representative received notice or acquired actual knowledge that: (a) A party intends or may intend to use an individual's genetic material to create a child; and (b) The birth of the child could affect the distribution of the trust assets. SECTION 18. 15-14-310 (1) (b), Colorado Revised Statutes, is amended to read: 15-14-310. Who may be guardian - priorities - prohibition of dual roles. (1) Subject to subsection (4) of this section, the court in appointing a guardian shall consider persons otherwise qualified in the following order of priority: (b) A person nominated as guardian by the respondent, including the respondent's specific nomination of a guardian made in a durable power of attorney or given priority to be a guardian in a designated beneficiary agreement made pursuant to article 22 of this title; SECTION 19. 15-14-413 (1) (b), Colorado Revised Statutes, is amended to read: 15-14-413. Who may be conservator - priorities - prohibition of dual roles. (1) Except as otherwise provided in subsection (4) of this section, the court, in appointing a conservator, shall consider persons otherwise qualified in the following order of priority: (b) A person nominated as conservator by the respondent, including the respondent's specific nomination of a conservator made in a durable power of attorney or given priority to be a conservator in a designated beneficiary agreement made pursuant to article 22 of this title, if the respondent has attained twelve years of age; SECTION 20. 15-18.5-103 (1), Colorado Revised Statutes, is amended to read: 15-18.5-103. Proxy decision-makers for medical treatment authorized. (1) A health care provider or health care facility may rely, in good faith, upon the medical treatment decision of a proxy decision-maker selected in accordance with subsection (4) of this section if an adult patient's attending physician determines that such patient lacks the decisional capacity to provide informed consent to or refusal of medical treatment and no guardian with medical decision-making authority, agent appointed in a medical durable power of attorney, person designated as a designated beneficiary with the right to act as a proxy decision-maker in a designated beneficiary agreement made pursuant to article 22 of this title, or other known person has the legal authority to provide such consent or refusal on the patient's behalf. SECTION 21. 15-18.5-104 (1), Colorado Revised Statutes, is amended to read: 15-18.5-104. Surrogate decision-makers for health care benefits. (1) A proxy decision-maker for medical treatment selected in accordance with section 15-18.5-103 or a person designated as a designated beneficiary with the right to act as a surrogate decision-maker in a designated beneficiary agreement made pursuant to article 22 of this title shall have authority to make health care benefit decisions on behalf of an adult patient and may be known additionally as a surrogate decision-maker for health care benefits. SECTION 22. 15-19-106 (1) (c.5), Colorado Revised Statutes, is amended to read: 15-19-106. Right to dispose of remains. (1) Subject to section 15-19-105 (2), the right to control disposition of the last remains or ceremonial arrangements of a decedent vests in and devolves upon the following persons, at the time of the decedent's death, in the following order: (c.5) A designated beneficiary who was designated in a designated beneficiary agreement pursuant to article 22 of this title as having person with the right to direct the disposition of the decedent's last remains in a designated beneficiary agreement made pursuant to article 22 of this title; SECTION 23. 15-22-106, Colorado Revised Statutes, is amended to read: 15-22-106. Statutory form of a designated beneficiary agreement. (1) The following statutory form shall be the standard form for a designated beneficiary agreement: DESIGNATED BENEFICIARY AGREEMENT DISCLAIMER Warning: While this document may indicate your wishes, certain additional documents may be needed to protect these rights. This designated beneficiary agreement is operative in the absence of other estate planning documents and will be superseded and set aside to the extent it conflicts with valid instruments such as a will, power of attorney, or beneficiary designation on an insurance policy or pension plan. This designated beneficiary agreement is superseded by such other documents and does not cause any changes to be made to those documents or designations. The parties understand that executing and signing this agreement is not sufficient to designate the other party for purposes of any insurance policy, pension plan, payable upon death designation or manner in which title to property is held and that additional action will be required to make or change such designations. The parties understand that this designated beneficiary agreement may be one component of estate planning instructions and that they are encouraged to consult an attorney to ensure their estate planning wishes are accomplished. We, _______________, (insert full name and address) referred to as party A, and _______________, (insert full name and address) referred to as party B, hereby designate each other as the other's designated beneficiary with the following rights and protections, granted or withheld as indicated by our initials: TO GRANT ONE OR MORE OF THE RIGHTS OR PROTECTIONS SPECIFIED IN THIS FORM, INITIAL THE LINE TO THE LEFT OF EACH RIGHT OR PROTECTION YOU ARE GRANTING. TO WITHHOLD A RIGHT OR PROTECTION, INITIAL THE LINE TO THE RIGHT OF EACH RIGHT OR PROTECTION YOU ARE WITHHOLDING. A DESIGNATED BENEFICIARY AGREEMENT SHALL BE PRESUMED TO GRANT ALL OF THE RIGHTS AND PROTECTIONS LISTED IN THIS FORM UNLESS THE PARTIES WITHHOLD A RIGHT OR PROTECTION IN THE MANNER SET FORTH IMMEDIATELY ABOVE. TO GRANT A RIGHT TO WITHHOLD A RIGHT OR PROTECTION OR PROTECTION INITIAL INITIAL Party A Party B Party A Party B ___ ___ The right to acquire, hold title to, own jointly,___ ___ or transfer inter vivos or at death real or personal property as a joint tenant with me with right of survivorship or as a tenant in common with me; ___ ___ The right to be designated by me as a___ ___ beneficiary, payee, or owner as a trustee named in an inter vivos or testamentary trust for the purposes of a nonprobate transfer on death; ___ ___ The right to be designated by me as a___ ___ beneficiary and recognized as a dependent in an insurance policy for life insurance; ___ ___ The right to be designated by me as a___ ___ beneficiary and recognized as a dependent in a health insurance policy if my employer elects to provide health insurance coverage for designated beneficiaries; ___ ___ The right to be designated by me as a___ ___ beneficiary in a retirement or pension plan; ___ ___ The right to petition for and have priority for___ ___ appointment as a conservator, guardian, or personal representative for me; ___ ___ The right to visit me in a hospital, nursing___ ___ home, hospice, or similar health care facility in which a party to a designated beneficiary agreement resides or is receiving care; ___ ___ The right to initiate a formal complaint___ ___ regarding alleged violations of my rights as a nursing home patient as provided in section 25-1-120, Colorado Revised Statutes; ___ ___ The right to act as a proxy decision-maker or___ ___ surrogate decision-maker to make medical care decisions for me pursuant to section 15-18.5-103 or 15-18.5-104, Colorado Revised Statutes; ___ ___ The right to notice of the withholding or___ ___ withdrawal of life-sustaining procedures for me pursuant to section 15-18-107, Colorado Revised Statutes; ___ ___ The right to challenge the validity of a___ ___ declaration as to medical or surgical treatment of me pursuant to section 15-18-107 15-18-108, Colorado Revised Statutes; ___ ___ The right to act as my agent to make, revoke,___ ___ or object to anatomical gifts involving my person pursuant to the "Revised Uniform Anatomical Gift Act", part 1 of article 34 of title 12, Colorado Revised Statutes; ___ ___ The right to inherit real or personal property___ ___ from me through intestate succession; ___ ___ The right to have standing to receive benefits___ ___ pursuant to the "Workers' Compensation Act of Colorado", article 40 of title 8, Colorado Revised Statutes, in the event of my death on the job; ___ ___ The right to have standing to sue for wrongful___ ___ death in the event of my death; and ___ ___ The right to direct the disposition of my last___ ___ remains pursuant to article 19 of title 15, Colorado Revised Statutes. THIS DESIGNATED BENEFICIARY AGREEMENT IS EFFECTIVE WHEN RECEIVED FOR RECORDING BY THE COUNTY CLERK AND RECORDER OF THE COUNTY IN WHICH ONE OF THE DESIGNATED BENEFICIARIES RESIDES. THIS DESIGNATED BENEFICIARY AGREEMENT WILL CONTINUE IN EFFECT UNTIL ONE OF THE DESIGNATED BENEFICIARIES REVOKES THIS AGREEMENT BY RECORDING A REVOCATION OF DESIGNATED BENEFICIARY FORM WITH THE COUNTY CLERK AND RECORDER OF THE COUNTY IN WHICH THIS AGREEMENT WAS RECORDED OR UNTIL THIS AGREEMENT IS SUPERSEDED IN PART OR IN WHOLE BY A SUPERSEDING LEGAL DOCUMENT. _______________________________________________________ Signature of designated beneficiarySignature of designated beneficiary STATE OF COLORADO County of ______________ This document was subscribed, sworn to, and acknowledged before me on ___________date by ________________________ My commission expires ______________ [Seal] _______________________________ Notary Public (2) The instructions to each party regarding how to grant or withhold a right or protection by initialing and the words "Party A" and "Party B" shall appear at the top of each page of the statutory form above the columns for the initials of the designated beneficiaries. (3) A designated beneficiary agreement shall be presumed to extend all of the rights and protections listed in the statutory form unless the parties to the agreement explicitly exclude a right or protection. (4) A party to a designated beneficiary agreement may limit the scope of a designated beneficiary agreement by the terms of the agreement or by executing a superseding legal document that controls and supersedes part or all of the designated beneficiary agreement. SECTION 24. Section 17 of chapter 310, Session Laws of Colorado 2009, is amended to read: Section 17. Effective date - applicability. (1) This act takes effect on July 1, 2010. (2) This act applies on or after July 1, 2010, to: (a) Governing instruments executed by decedents dying on or after July 1, 2010; and (b) Any proceedings in court then pending or thereafter commenced regardless of the time of death of the decedent except to the extent that, in the opinion of the court, the former procedure statute should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of the "Colorado Probate Code", articles 10 to 17 of title 15, Colorado Revised Statutes a provision of this act. (c) An act done before the effective date of this act in any proceeding and any accrued right is not impaired by this act. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before the effective date of this act, the provisions shall remain in force with respect to that right; and (d) Any rule of construction or presumption provided in this act applies to governing instruments executed before the effective date of this act unless there is a clear indication of a contrary intent. (3) This act shall not apply to: (a) An action performed before the effective date of this act in any proceeding; (b) An accrued right; (c) A right that is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before July 1, 2010; or (d) A provision of a governing instrument that was executed before July 1, 2010, and includes a clear indication of a contrary intent. SECTION 25. Specified effective date - applicability. (1) This act shall take effect July 1, 2010. (2) This act shall apply to: (a) Governing instruments executed by decedents who die on or after July 1, 2010; and (b) Any proceeding in court then pending or thereafter commenced regardless of the time of death of the decedent except to the extent that, in the opinion of the court, the former statute should be made applicable in a particular case in the interest of justice or because of infeasibility of application of a provision of this act. (3) This act shall not apply to: (a) An action performed before the effective date of this act in any proceeding; (b) An accrued right; (c) A right that is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before July 1, 2010; or (d) A provision of a governing instrument that was executed before July 1, 2010, and includes a clear indication of a contrary intent. SECTION 26. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. ____________________________ ____________________________ Brandon C. Shaffer Terrance D. Carroll PRESIDENT OF SPEAKER OF THE HOUSE THE SENATE OF REPRESENTATIVES ____________________________ ____________________________ Karen Goldman Marilyn Eddins SECRETARY OF CHIEF CLERK OF THE HOUSE THE SENATE OF REPRESENTATIVES APPROVED________________________________________ _________________________________________ Bill Ritter, Jr. GOVERNOR OF THE STATE OF COLORADO