Do wrongful death proceeds pass in accordance to the Decedent's Last Will and Testament? (CO) | Colorado Estate Planning | FastCounsel
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Do wrongful death proceeds pass in accordance to the Decedent's Last Will and Testament? (CO)

August 7, 2025 4 min read

FAQ: How do wrongful death proceeds get distributed under Colorado law?

Short answer: In Colorado, most wrongful-death recoveries are for the benefit of the decedent’s surviving spouse and next of kin and do not pass under the decedent’s will. A separate type of claim called a survival action (the decedent’s own claim for pain, suffering, or damages that accrued before death) is part of the estate and can pass under the will. See Colorado statutes cited below.

Detailed Answer — How distribution works in Colorado

1) Two different claims after a death caused by someone else’s wrongdoing

  • Wrongful-death claim: This claim compensates the decedent’s survivors for their losses (for example, loss of financial support, loss of companionship). The right to recover is statutory and the recovery is held for the surviving spouse and next of kin. The personal representative (executor or administrator) typically brings the claim for their benefit. See C.R.S. § 13-21-201: https://leg.colorado.gov/colorado-revised-statutes/13-21-201.
  • Survival action (decedent’s own cause of action): This is a separate claim for losses the decedent personally suffered before death (pain and suffering, medical expenses incurred prior to death, lost earnings the decedent would have had). Those proceeds belong to the decedent’s estate and are distributed according to the probate rules and the decedent’s will (if one exists). See C.R.S. § 13-20-101: https://leg.colorado.gov/colorado-revised-statutes/13-20-101.

2) Does the decedent’s will control wrongful-death proceeds?

No, generally not. Wrongful-death proceeds are for surviving family members under the wrongful-death statute and are not distributed according to the decedent’s will. The will controls only property and claims that belong to the decedent’s estate — such as survival-action recoveries or assets that are part of probate.

3) What if there is no surviving spouse or next of kin?

If there are no statutory survivors entitled to wrongful-death damages, the right to bring an action may vest in the personal representative for the decedent’s estate. In such a situation the recovery could effectively become an asset of the estate and be distributed under the will or by intestacy rules. For precise application of these rules to your situation, the statutory language in C.R.S. § 13-21-201 should be reviewed: https://leg.colorado.gov/colorado-revised-statutes/13-21-201.

4) Practical example (hypothetical)

Hypothetical: Anna is killed in a car crash. She leaves a valid will that leaves her estate to a charity. She is survived by a spouse and one adult child. Two different recoveries may arise:

  1. Wrongful-death damages for Anna’s survivors are recovered for the spouse and child under the wrongful-death statute — the will’s gift to the charity does not override those statutory survivor rights.
  2. If Anna had a separate claim for pain and suffering before death (a survival action), proceeds from that claim would belong to Anna’s estate and could be distributed under her will (potentially to the charity).

5) Who sues and who gets the money?

The decedent’s personal representative usually brings wrongful-death and survival actions on behalf of the people who will benefit. For wrongful-death claims, the recovery is held for the surviving spouse and next of kin as the statute specifies. For survival actions, the recovery becomes a probate asset and passes under the will or by intestacy rules.

Helpful Hints

  • Read the two statutes: wrongful death (C.R.S. § 13-21-201) and survival actions (C.R.S. § 13-20-101) to see the statutory division of claims: C.R.S. § 13-21-201 and C.R.S. § 13-20-101.
  • Keep the distinction in mind: wrongful-death = for survivors; survival action = for estate. That difference determines whether the will matters.
  • Confirm who the surviving spouse and next of kin are. Colorado’s wrongful-death statute defines who benefits; an estate plan or will does not alter that statutory distribution.
  • If you are a personal representative, preserve evidence and be prepared to act on behalf of survivors. Insurers often require prompt notice and claim handling.
  • If no statutory survivors exist, the recovery may flow to the estate. In that case, the will (or intestacy rules) will matter.
  • Consult an attorney early. A lawyer can explain how the wrongful-death and survival claims should be filed and how recoveries will be allocated under Colorado law.

Disclaimer: This article is for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific case, contact a licensed Colorado attorney.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.