In re the Estate of Paul J. Gadash, deceased.
Estate of Paul J. Gadash by and through its Personal Representative, Linda Rose, Appellee. Lorella Gadash, Petitioner-Appellant,
County District Court No. 15PR30000 Honorable Douglas A.
Tallman, Judge Honorable M. Jon Kolomitz, Judge
S. Davis, Lamar, Colorado, for Petitioner-Appellant
Law Offices of David S. Anderson, David Anderson, Greeley,
Colorado, for Appellee
1 In this probate action, Lorella Gadash (Mrs. Gadash)
appeals the probate court's orders barring her
creditor's claim for services rendered to her husband,
Paul J. Gadash (Mr. Gadash), and denying her petition for
spouse's elective share in favor of the Estate of Paul J.
Gadash, by and through its personal representative, Linda
Rose. We conclude that (1) Mrs. Gadash failed to timely
appeal the final order barring her creditor's claim, and
(2) the probate court properly considered Mr. and Mrs.
Gadash's second marital agreement in denying Mrs.
Gadash's petition for spouse's elective share.
Accordingly, we dismiss the appeal in part and affirm the
order of the probate court.
2 The day before their 1975 wedding, Mr. and Mrs. Gadash
executed an antenuptial agreement (the first marital
agreement). Under the terms of the first marital agreement,
each spouse waived any right to the other's pre-marital
property. Specifically, Mr. Gadash owned two commercial
properties in Kansas.
3 During their first year of marriage, Mr. and Mrs. Gadash
jointly acquired a hotel. In 1978, they entered into a second
marital agreement. Under the second marital agreement, Mrs.
Gadash waived her right to an elective share of Mr.
Gadash's estate and any benefit that would pass to her
from it. Mr. Gadash also waived the right to an elective
share of one-half of Mrs. Gadash's estate, but only as to
property given to Mrs. Gadash by her parents.
4 After the second marital agreement, Mr. Gadash liquidated
his Kansas properties, and he and Mrs. Gadash jointly
acquired a horse property, lots adjacent to their hotel
property, and a residential property. Mr. Gadash also
separately bought and sold a different motel. Mrs. Gadash
received a home from her parents.
5 In 2001, Mr. and Mrs. Gadash entered into a third marital
agreement. In this agreement, they mutually waived rights to
certain real property listed in two exhibits attached to the
agreement. Of note, the third marital agreement specifically
incorporated the terms of the first marital agreement but was
silent as to the second marital agreement.
6 After the third marital agreement, Mr. and Mrs. Gadash re-
allocated the properties held by each of them. Mr. Gadash
conveyed the lots adjacent to the hotel to Mrs. Gadash and
purchased three additional commercial properties. Mrs. Gadash
conveyed the jointly held residential property and hotel to
Mr. Gadash and retained the residential property given to her
by her parents.
7 In 2008, Mr. Gadash executed his last will and testament.
In it, he left all of his probate estate to his daughter, who
is also the personal representative of the estate. He also
left a $2000 gift to Mrs. Gadash. Mrs. Gadash executed a will
in 2014, leaving none of her probate estate to Mr. Gadash.
8 On December 31, 2014, Mr. Gadash died and his will was
admitted into probate in an unsupervised administration of
estate, meaning "only the barest minimum of procedure is
required and no hearings are held, unless warranted." 24
Catherine Anne Seal, Colorado Practice Series, Elder
Law § 16:2, Westlaw (database updated Nov. 2016).
9 On March 4, 2015, Mrs. Gadash filed a petition for
spouse's elective share of Mr. Gadash's estate. The
petition was filed under the case number governing the
administration of Mr. Gadash's estate. Notwithstanding
the terms of the will, in her petition, Mrs. Gadash argued
that because Mr. Gadash's will provided no gift to Mrs.
Gadash, under section 15-11-202, C.R.S. 2016, she was
entitled to elect an amount equal to fifty percent of the
value of the marital property portion of Mr. Gadash's
estate. She further alleged that the second marital agreement
was not controlling over Mr. Gadash's estate.
10 On the same day, Mrs. Gadash separately filed a
creditor's claim against the personal representative, in
which she sought compensation for end-of-life services. In
her creditor's claim, Mrs. Gadash argued that she should
be compensated out of Mr. Gadash's estate for providing
twenty-four-hour-a-day care to Mr. Gadash for the year and a
half preceding his death. Mrs. Gadash's creditor's
claim did not reference the petition for spouse's
elective share. It did, however, acknowledge the existence of
marital agreements precluding her from taking under the
estate of Mr. Gadash.
11 On September 24, 2015, the probate court ruled that Mrs.
Gadash's creditor's claim was barred for failure to
protest the personal representative's notice of
disallowance before the statutory deadline. Separately, on
January 19, 2016, the probate court denied Mrs. Gadash's
petition for spouse's elective share.
12 On March 4, 2016, Mrs. Gadash filed a notice of appeal,
challenging the probate court's rulings against her on
both the creditor's claim and petition for spouse's
13 We first address Mrs. Gadash's creditor's claim;
then, we turn to the petition for spouse's elective
14 The personal representative contends that the probate
court's order barring Mrs. Gadash's creditor's
claim was a final order, which Mrs. Gadash failed to timely
appeal. Mrs. Gadash asserts that the order barring her
creditor's claim did not become final until the probate
court ruled on her petition for spouse's elective share,
and, thus, her appeal was timely. Because we conclude that
Mrs. Gadash's creditor's claim was governed by a
proceeding independent of her petition for spouse's
elective share, we agree with the personal
representative. Accordingly, we lack jurisdiction to
consider the probate court's order barring Mrs.
Gadash's creditor's claim.
15 The existence of subject matter jurisdiction is a question
of law that we review de novo. City of Boulder v. Pub.
Serv. Co. of Colo., 996 P.2d 198, 203 (Colo.App. 1999).
16 "The timely filing of a notice of appeal is a
jurisdictional prerequisite to appellate review." In
re Marriage of Farr, 228 P.3d 267, 268 (Colo.App. 2010)
(citation omitted). The notice of appeal must be filed within