of Gallegos

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
August 26, 2021

2021COA115

No. 20CA0721, Estate of Gallegos — Probate — Intestate
Succession — Individual Adopted by Relative of Genetic Parent

As a matter of first impression, a division of the court of

appeals concludes that intestate succession for a child who was

adopted by certain relatives of the child’s genetic parents is

governed by Probate Code section 15-11-119(3), C.R.S. 2020, rather

than a conflicting provision of the Children’s Code, section 19-3-

608, C.R.S. 2020, which terminates an adopted child’s status as an

heir at law upon a final decree of adoption.
COLORADO COURT OF APPEALS 2021COA115

Court of Appeals No. 20CA0721
Costilla County District Court No. 17PR30006
Honorable Crista Newmyer-Olsen, Judge

In re the Estate of Joseph Celestino Gallegos, deceased.

Shennae Finan, f/k/a Shennae Jaramillo and Corpus A. Gallegos Ranches,
LLLP, a Colorado limited liability limited partnership,

Appellants,

v.

Patricia Vialpando,

Appellee.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE GROVE
J. Jones and Graham*, JJ., concur

Announced August 26, 2021

Dill Dill Carr Stonbraker & Hutchings, P.C., David R. Struthers, Denver,
Colorado, for Appellant Shennae Finan

The Overton Law Firm, Thomas J. Overton, Steven R. Schumacher, Golden,
Colorado, for Appellant Corpus A. Gallegos Ranches, LLLP

Law Office of Karl Kuenhold LLC, Karl Kuenhold, Denver, Colorado, for
Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 In this probate case, appellants Shennae Finan, formerly

known as Shennae Jaramillo, and Corpus A. Gallegos Ranches,

LLLP, appeal the district court’s ruling that appellee Patricia

Vialpando is an heir of Joseph Celestino Gallegos, who died

intestate. Applying section 15-11-119(3), C.R.S. 2020, we conclude

that, for the purpose of intestate succession, the parent-child

relationship between Gallegos and Vialpando was not terminated

when Vialpando was adopted in 1991. Therefore, we affirm.

I. Background

¶2 Gallegos died in December 2016. He had two biological

children: Vialpando and Finan. Vialpando was born in 1990 and

was adopted by her maternal grandparents in 1991. However, she

maintained a relationship with Gallegos throughout his life and he

named her as the beneficiary of his savings and retirement

accounts. Finan, who was born in 1989 and who otherwise had no

relationship with Gallegos, learned that Gallegos was her father

nearly two years after his death. Both biological daughters now

seek a share of his estate, and Finan’s heirship is not in dispute.

¶3 Gallegos died without a spouse or a will, meaning that his

children are entitled to inherit the estate’s assets in equal shares.

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See § 15-11-103(2), C.R.S. 2020. The district court named

Vialpando his sole heir and appointed her as personal

representative for his estate. Once Finan learned that Gallegos was

her biological father, however, she moved to modify the court’s

determination of heirship. Finan’s motion claimed that she was

Gallegos’s sole heir because Vialpando’s adoption cut off

Vialpando’s relationship with Gallegos for the purpose of intestate

succession. Gallegos Ranches, a family partnership owned by the

late Gallegos and his two brothers, joined Finan’s argument.

¶4 The district court ruled that both Vialpando and Finan are

heirs to Gallegos’s estate. Although Vialpando was adopted by her

maternal grandparents — thereby terminating her parent-child

relationship with Gallegos — the court concluded that a 2010

amendment to the Probate Code, which allowed children adopted by

relatives to inherit from their genetic parents, revived that

relationship for the purpose of intestate succession. Finan and

Gallegos Ranches now jointly appeal, contending that the district

court erred by applying the amended Probate Code provision

because it was passed nearly twenty years after Vialpando’s

adoption was finalized.

2
II. Standard of Review

¶5 Statutory interpretation is a question of law that we review de

novo. See, e.g., Neher v. Neher, 2015 COA 103, ¶ 19. We first

examine the statute’s plain language within the context of the

statute as a whole. Id. We give words and phrases effect based on

their plain and ordinary meaning. Id. If a statute is clear and

unambiguous on its face, we apply it and do not resort to other

canons of statutory interpretation. Hassler v. Acct. Brokers of

Larimer Cnty., Inc., 2012 CO 24, ¶ 15.

¶6 In probate cases, we must construe the statutory provisions

“liberally to promote a speedy and efficient system for settling a

decedent’s estate, and making distribution to his or her successors,

while promoting uniformity in the administration of estates among

different jurisdictions.” Oldham v. Pedrie, 2015 COA 95, ¶ 10.

III. Children’s Code

¶7 Under the Children’s Code, a final decree of adoption divests

the biological parents “of all legal rights and obligations with respect

to the child.” § 19-5-211(2), C.R.S. 2020. Relatedly, a “child’s

status as an heir at law . . . shall cease only upon a final decree of

adoption.” § 19-3-608(1), C.R.S. 2020. Under these provisions, as

3
things stood in 1991, once Vialpando was adopted (by anyone), any

right to inherit property via Colorado’s laws of intestate succession

was terminated along with the parent-child relationship.

IV. Probate Code

¶8 In 2010, the General Assembly amended Colorado’s intestate

succession laws. As relevant here, those amendments included a

provision allowing children who are adopted by relatives of either

genetic parent to inherit from a genetic parent who dies without a

will.

A parent-child relationship exists between both
genetic parents and an individual who is
adopted by a relative of a genetic parent, or by
the spouse or surviving spouse of a relative of
a genetic parent, but only for the purpose of
the right of the adoptee or a descendant of the
adoptee to inherit from or through either
genetic parent.

§ 15-11-119(3). This language was in effect in 2016 at the time of

Gallegos’s death.

V. Analysis

¶9 The sole question before us is whether the 2010 amendment

applies to Vialpando. We hold that it does and as a result conclude

that Vialpando is Gallegos’s heir.

4
¶ 10 Appellants contend that upon Vialpando’s adoption in 1991,

Gallegos was permanently divested of “all legal rights and

obligations with respect to” Vialpando, and the parent-child

relationship was forever terminated. Because of the finality of the

adoption decree and the corresponding provisions of the Children’s

Code, which specify that “a child’s status as an heir at law” ceases

upon a final decree of adoption, § 19-3-608(1), appellants assert

that the 2010 amendment to the Probate Code had no effect on

Vialpando’s status as an heir.1 Because no parent-child

relationship existed in 2010, appellants contend, there was no

parent-child relationship to revive, even for the limited purpose of

intestate succession. We disagree.

1 Notably, appellants do not distinguish between an heir and an
heir apparent. It is settled law that heirs can only be determined
after a decedent’s death. Prior to his death, a decedent’s relative
can only be an heir apparent — someone with a mere expectation of
inheriting in the future. See Quintrall v. Goldsmith, 134 Colo. 410,
418, 306 P.2d 246, 250 (1957). It is upon the decedent’s death that
the legal title to estate property vests instantly in his heirs at law.
In re Estate of McQuade, 88 Colo. 341, 346, 296 P. 1023, 1025
(1931); see also Pierce v. Francis, 194 P.3d 505, 510 (Colo. App.
2008).

5
A. Conflict of Laws

¶ 11 Probate courts must consider the adoption and inheritance

laws in effect at the time of adoption, but the right of adopted

children to inherit is determined by the inheritance laws in effect

when the intestate died. Estate of David v. Snelson, 776 P.2d 813,

820, 815 (Colo. 1989). The Probate Code in effect at the time of

Gallegos’s death provided that a parent-child relationship existed

between “both genetic parents and an individual who is adopted by

a relative of a genetic parent . . . but only for the purpose of the

right of the adoptee or a descendant of the adoptee to inherit from

. . . either genetic parent.” § 15-11-119(3) (emphasis added). The

statute does not clarify whether it is intended to have only

prospective effect, but because Vialpando was adopted by her

maternal grandparents, it applies unless the adoption irreversibly

severed the parent-child relationship between Vialpando and

Gallegos for all purposes.

¶ 12 Nothing in Vialpando’s adoption records addressed the effect

of the adoption on Vialpando’s status as Gallegos’s heir. However,

under the Children’s Code, Vialpando’s “status as an heir at law”

ceased “upon a final decree of adoption.” § 19-3-608(1). This

6
provision conflicts with the 2010 amendment to the Probate Code.

Simply put, if section 15-11-119(3) controls, Vialpando became

Gallegos’s heir upon his death. On the other hand, if adoption

irrevocably severed Vialpando’s relationship with Gallegos for all

purposes, then she did not. To resolve this conflict, we apply

principles of statutory construction to determine which provision

controls.

B. Principles of Statutory Construction

¶ 13 The overriding goal of statutory construction is to effectuate

the legislature’s intent. Doubleday v. People, 2016 CO 3, ¶ 19. We

interpret the statute within the context of its broader scheme to give

consistent, harmonious, and sensible effect to all its parts. Curtis v.

Hyland Hills Park & Recreation Dist., 179 P.3d 81, 83 (Colo. App.

2007). When we conclude, as we do here, that two applicable

provisions are irreconcilable, we look to both specificity and recency

to resolve the conflict. Dawson v. Reider, 872 P.2d 212, 214 (Colo.

1994).

¶ 14 First, the more specific statute prevails over the more general

one. § 2-4-205, C.R.S. 2020 (explaining that if a conflict between a

special provision and a general provision is irreconcilable, “the

7
special . . . provision prevails as an exception to the general

provision”). “Interpreting a specific provision as prevailing over a

general one still allows for both provisions to exist,” People v.

Cooper, 27 P.3d 348, 355 (Colo. 2001), an approach that is

consistent with the goal of giving full and sensible effect to the

entire statutory scheme, see Smith v. Colo. Motor Vehicle Dealer Bd.,

200 P.3d 1115, 1118 (Colo. App. 2008).

¶ 15 Second, the more recent statute prevails over the older one.

Jenkins v. Panama Canal Ry. Co., 208 P.3d 238, 241 (Colo. 2009).

This is true even if the General Assembly did not clearly intend the

more recent statute to supplant an existing statute. See City of

Florence v. Pepper, 145 P.3d 654, 657, 660 (Colo. 2006). We

assume the legislature is aware of its enactments, and, therefore,

we conclude that by passing an irreconcilable statute at a later

date, it “intended to alter the prior statute.” Jenkins, 208 P.3d at

242.

¶ 16 Applying these principles here, we conclude that because the

probate statute is both more specific and more recent, it prevails

over the conflicting provisions of the Children’s Code.

8
¶ 17 At the outset, we recognize that the conflict between section

15-11-119(3) and section 19-3-608(1) is quite limited. It only

applies to children who have been adopted by certain relatives of

their biological parents; section 19-3-608(1) continues to apply to

nonrelative adoptions. Because we aim to give full and sensible

effect to the entire statutory scheme, we interpret section 15-11-

119(3) as carving out a limited exception to the general rule

outlined in section 19-3-608(1).

¶ 18 The timing of section 15-11-119(3)’s passage lends support to

our conclusion that the General Assembly intended to alter the

scope of section 19-3-608. To be sure, we assume that the

legislature is familiar with its previous enactments. Jenkins, 208

P.3d at 242. But it is also clear that the amendment to the Probate

Code would not make sense unless the General Assembly

understood the general rule established in the Children’s Code.

Therefore, we are confident that the legislature “intended to alter”

the Children’s Code when it passed the more recent amendment to

the Probate Code. See id.

¶ 19 But this does not end our inquiry. Having concluded that the

2010 amendments to the Probate Code govern our review of

9
Gallegos’s intestate succession, we next evaluate our application of

the statute to ensure that it does not run afoul of the state

constitution.

C. Retroactivity and Retrospectivity

¶ 20 Appellants contend that designating Vialpando as Gallegos’s

heir under section 15-11-119(3) is an impermissible retroactive and

retrospective application of that provision, contrary to legislative

intent and in violation of the Colorado Constitution. As they point

out, the General Assembly has specifically provided that “[n]o

provision of this [probate] code or of any amendment to this code

shall apply retroactively if the court determines that such

application would cause the provisions to be retrospective in its

operation in violation of section 11 of article II of the state

constitution.” § 15-17-101(2)(f), C.R.S. 2020.

¶ 21 A statute is retroactive if it operates on transactions that have

already occurred or on rights and obligations that existed before its

effective date. Ficarra v. Dep’t of Regul. Agencies, 849 P.2d 6, 11

(Colo. 1993). Retroactive application of a statute is generally

disfavored by both the common law and statute. Id.; § 2-4-202,

C.R.S. 2020. But retroactive application of a civil statute is not

10
necessarily unconstitutional: it is permitted where the statute

effects a change that is procedural or remedial. People v. D.K.B.,

843 P.2d 1326, 1332 (Colo. 1993). Because some retroactively

applied legislation is constitutional while some is not, Colorado

courts mark this distinction with the term contained in the

constitutional provision — “retrospective” — to describe a statute

whose retroactive application is unconstitutional. In re Estate of

DeWitt, 54 P.3d 849, 854 (Colo. 2002); Ficarra, 849 P.2d at 12.

¶ 22 Contrary to appellants’ claims, the district court did not apply

section 15-11-119(3) either retroactively or retrospectively. Because

no child has a vested right in her father’s property before his death,

Quintrall v. Goldsmith, 134 Colo. 410, 419, 306 P.2d 246, 250-51

(1957), Vialpando could not have permanently lost any right to

Gallegos’s estate when she was adopted in 1991. As we have

already discussed, a decedent’s heirs are determined at the moment

of his death, based on the Probate Code in effect at the time of his

death.

¶ 23 When Gallegos died in 2016, the court appropriately applied

the existing Probate Code, which provides that a “parent-child

relationship exists” for purposes of intestate succession between

11
Gallegos and Vialpando. § 15-11-119(3). Had Gallegos died

between the date of Vialpando’s adoption and the day prior to the

enactment of the 2010 Probate Code amendment, Vialpando would

not be considered an heir. But that is not what happened.

Gallegos died after the 2010 Probate Code amendment was enacted,

so Vialpando appropriately inherits her share of his estate through

intestate succession. This means that applying the 2010

amendment to the Probate Code to the intestate succession of

Gallegos’s estate is not retroactive.

D. Vested Rights

¶ 24 We find the foregoing statutory analysis dispositive of the

issue of Vialpando’s heirship. However, we now briefly address

appellants’ alternative argument that upon Vialpando’s adoption in

1991, Gallegos had a vested right to be free from any future legal

obligations that would result from being her biological father, even

after his death. We find this unpersuasive.

¶ 25 Appellants contend that the focus should properly be on

Gallegos’s vested rights to be free of any obligations to Vialpando,

and not on Vialpando’s legal right to inherit. But “heirship is not a

parental obligation; it is a legal right which accrues automatically to

12
the child upon the decedent’s death.” In re Estate of Bomareto, 757

P.2d 1135, 1137 (Colo. App. 1988) (citing Quintrall, 134 Colo. 410,

306 P.2d 246), overruled on other grounds by Estate of David, 776

P.2d at 820. In their briefing, appellants did not cite any cases

supporting their contention that Gallegos’s right to be free of

parental obligations also applied to intestate succession by his

heirs, nor could they point us to any such cases during oral

argument.

¶ 26 Instead, appellants cite the statutory language of the 2010

Probate Code amendment in support of their contention that

Gallegos’s vested right is not affected by the revision to the statute.

Section 15-17-101(2)(d) of the Probate Code reads: “An act done . . .

before the effective date of an amendment to this code, in any

proceeding is not impaired by this code or by any amendment to

this code.” But appellants’ argument fails because the adoption of

Vialpando was not impaired or otherwise affected by the 2010

amendment to the Probate Code. Throughout his life, Gallegos

remained free of any legal rights or obligations with respect to

Vialpando.

13
¶ 27 If, as appellants contend, adoption means that a biological

parent has a vested right to have no legal connection to the child at

any point in the future, and this vested right supersedes statutory

changes, then this would render the General Assembly’s 2010

amendment to the Probate Code meaningless regardless of the date

of the adoption. Because a “statutory interpretation leading to an

illogical or absurd result will not be followed,” Frazier v. People, 90

P.3d 807, 811 (Colo. 2004), we decline to adopt this interpretation.

VI. Conclusion

¶ 28 The judgment is affirmed.

JUDGE J. JONES and JUDGE GRAHAM concur.

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