Common-Law Marriage in Colorado

Common-Law Marriage in Colorado

Common-law marriage is an oft-misunderstood issue that arises in estate and divorce proceedings, two legal scenarios which coincidentally involve the division of money.  Colorado is one of only a handful of states that still recognizes common-law marriage, which is simply is a legal status granted to someone who did not obtain a marriage certificate evidencing that marriage from the state.  In the estate context, the surviving spouse has certain valuable statutory entitlements in Colorado, whether or not there is a will.

There are many misconceptions that circulate about common-law marriage.  We are often approached by a client who states that he or she is common-law married, but upon further discussion of the requirements, finds that they may not actually be able to prove that status.   Proof is important, because common-law marriage does not carry any legal significance until is is proven in a court or bureaucratic setting.  Common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.  At the threshold, there must be a mutual agreement between the parties, evidenced by cohabitation and “holding themselves out.” The parties’ conduct must evidence their mutual understanding that they are husband and wife.  Factors in evaluating that conduct include:

  • Tax returns. Did the parties indicate they were married
  • Testimony of friends and acquaintances.  Did the parties refer to each other as husband and wife? Did others believe they were married?
  • Joint accounts.  Did the parties jointly own assets and accounts, and/or commingle their finances like a married couple might?
  • Insurance or other applications.  How did the parties refer to each other on legal documents?
  • Surname. Is one of the parties using the other’s surname?

The bottom line is that if you are relying on common-law marriage as the basis for your estate plan, you are  risking an expensive and unpleasant legal proceeding to enforce your inheritance rights.  Most folks cannot check all the boxes when it comes to the factors that a court might consider, and are putting themselves at the mercy of that’s court’s decision as to whether the relationship was indeed a marriage.

Please contact our office with your questions about common-law marriage.  We can help you take steps to clarify your status and reduce the risk of litigation over the issue.