Common Law Spouses and Probate

Common Law Spouses

What happens if your spouse dies and you were never formally married with a marriage certificate? Do you get nothing? Do you have to leave your home? This is a scary situation, but Colorado Law allows for common law marriage arguments in a probate the same as in a divorce case. However, the correct arguments need to made using sufficient evidence and every case is not a guaranteed success.

First, a common law marriage is established by the mutual consent or agreement of the parties to be spouses, followed by a mutual and open assumption of a marital relationship. This mutual consent doesn’t need to be in writing or even expressed through words. Instead, the persons’ conduct must evidence their mutual understanding that they are spouses. An important element of this is mutual consent or agreement to be spouses means that it must be clear that both people considered themselves spouses and not just one person.

Second, there two factors that most clearly demonstrate an intent to be married: (1) cohabitation; and (2) a general reputation in the community that the parties hold themselves out as spouses. Cohabitation means holding forth to the world by the manner of daily life, by conduct, demeanor, and habits, that the spouses have agreed to take each other in marriage and to stand in the mutual relation.

Third, other factors that judges consider in these cases are when the common law spouses maintain joint banking accounts, join credit accounts, create joint property ownership, the parties’ use of one surname, and the filing of joint income tax returns. However, this list is not exhaustive, and any form of evidence that openly shows the parties’ intent to be married may provide the required proof from which a mutual understanding can be inferred.

Lastly, a determination of whether a common law marriage exists turns on issues of fact and credibility. It is common to see fraudulent claims simply for financial benefit. For these reasons the Personal Representative (executor), Trustee, and/or the judge carefully reviews all evidence first before making any decisions.

Contact Rossi Law today if you have questions regarding common law spouses and probate.