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Inheritance, probate and Colorado common-law spouses

On Behalf of | Jul 18, 2019 | Estate Planning, Probate Litigation |

Colorado is one of a handful of states that still recognize common-law marriages, which are relationships in which the partners agree to be married and hold themselves out as married even though they have not followed state-sanctioned marriage requirements. If the relationship meets the legal requirements for a common-law marriage, when it comes to inheriting property and other spousal rights after one of the partners has died, state law treats the common-law spouse the same as if they had said “I do” before an officiant and filed a marriage certificate with a Colorado county.

Factors that prove a common-law marriage

The Colorado Supreme Court explained in People v. Lucero that a valid common-law marriage requires that the parties agree that they are married and that they display “conduct in a form of mutual public acknowledgment of the marital relationship …”

The marriage agreement between the partners need not be expressly spoken or written, but can be implied by their behavior, specifically by living together and holding themselves out publicly as married. The Supreme Court said that the “two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife.”

Other factors that may be relevant include joint accounts, joint property purchases, jointly titled property, use of one party’s last name by the other, use of a father’s last name for children they have together, filing joint tax returns and any other relevant factor under the circumstances.

Intersection of common-law marriage and probate issues

As Lucero explained, the reason the courts require specific conduct to establish a common-law marriage is to prevent the parties from engaging in fraudulent behavior. For example, if a couple lived together, but did not consider themselves married, one of them could try to falsely assert that they were a common-law spouse in a probate proceeding to try to claim part of the other’s estate after the other partner passes away. Requiring strong evidence that a couple hold themselves out to others as married helps prevent someone like this from fraudulently inheriting as a “spouse.”

Specific spousal rights to which a common-law spouse may be entitled (or that could be vulnerable to a fraudulent claim) include:

  • Taking a bequest under the decedent partner’s will as their spouse
  • Asserting a spouse’s elective share under state law instead of taking under the will
  • Taking a share of the deceased partner’s estate as an omitted spouse when the deceased partner executed the will before the common-law marriage
  • Receiving retirement accounts or other assets that name a spouse as the beneficiary or even if not named, asserting rights under certain accounts as a spouse when allowed by law
  • Inheriting an intestate share of the deceased partner’s property when there was no will as the spouse under state law
  • Asserting their right to highest priority to serve as personal representative of the deceased partner’s estate
  • Asserting a claim in the estate for a family allowance and an exempt property allowance under state law

Any Coloradan who believes they are a common-law spouse entitled to certain rights after their partner has died or any interested party or family member of a decedent who questions whether another person asserting themselves as a common-law spouse is a legal husband or wife should speak with an experienced Colorado estate and probate attorney for advice and representation.