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Common Law Marriage

Whether or not a person was married at the time of their death will profoundly affect their estate distribution. In Colorado, the deceased may have been married in one of two ways; (1) a traditional marriage or (2) a common law marriage.

If the deceased person is determined to be married and their spouse remains alive, the spouse may be entitled to some or all of the deceased’s estate.  Under Colorado law, if a person dies without a will, their surviving spouse is entitled to the majority, if not all, of the estate.  Even if a person passes away with a will, there is typically some residual property to which the surviving spouse is entitled. Additionally, surviving spouses have the right to make certain demands from the estate, including an exclusion for unclaimed property and a surviving support share.

After a person dies, there may be a dispute as to whether they were common law married at the time of death.  This would require the disputed spouse to petition the Court to determine the decedent was common law married, allowing the spouse to inherit under Colorado law.

When are two People Common Law Married?

A traditional marriage is easy to determine and is evidenced by a Colorado marriage license.  Many times, there was also a ceremony or event that represented the commitment to marriage by the spouses.

A common law marriage is much more difficult to determine and can involve a trial to prove.  Despite common misconception, there is no magic formula to when and if a common law marriage is established.

For two people to be common law married, Colorado law requires that:

  1. There was mutual consent or agreement of the two parties to be married; AND
  2. There was conduct showing the mutual agreement.

This means that for a Colorado common law marriage to have existed, the parties must have intended to enter a marital relationship by sharing a life together committed to mutual support.

When courts determine if a common law marriage existed, there is no single element, fact, or formula that creates the common law marriage. Colorado courts have commonly looked to the following for evidence (or lack thereof) of a common law marriage:

  1. Whether the parties lived together.
  2. Whether the parties had joint bank accounts.
  3. Whether the parties wore wedding rings.
  4. Whether the parties filed joint tax returns.
  5. Whether the parties introduced one another as or called one another husband/wife.
  6. Whether there was some ceremony, party, or event symbolizing the marriage.
  7. Whether the parties were beneficiaries of one another on benefits.

Because there is no formula and Colorado common law marriages have broad interpretations, cases are won and lost based upon the presentation of credible evidence.  The attorneys in common law marriage cases play an important role in the outcome of the decision.

The attorneys at Burnham Law know common law marriage and the best evidence to make a strong case.  At Burnham Law, we dig deep, hire investigators (if needed), and uncover evidence that would not have been found.  Call today to schedule your consultation.

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