Colorado common law marriage and estates

Posted by: Jan 29, 2014By Brian Stutheit

Q.  What is Common Law Marriage?

A. Colorado recognizes common law marriage. The following guidelines are used to determine if a common law marriage exits:

  • The man and women are free to enter into a marriage contract, neither is married to another person, and both parties are 18 or older.
  • The man and the woman mutually agree that their relationship constitutes a marriage.
  • The man and woman live in a marital relationship and consistently hold themselves out to the public, socially and legally, as married – such as sharing joint bank accounts, reporting their marital status on income tax returns or putting both names on property titles as husband and wife.

A common law marriage does not require a minimum period of cohabitation. The relationship mush be terminated by a court-ordered divorce decree.

Sleeping together does not mean you are married.

Q:  How does common law marriage affect estates and probate?

A:  A surviving spouse has significant rights against an estate.  You cannot disinherit your spouse, unless there is a prenuptial or postnuptial agreement.

If you die without a will, leaving children who are not also children of the common law spouse, the common law spouse is entitled to a large share of the estate.  This share often comes before the children receive anything.

If you die with a will, the surviving common law spouse is entitled to “elect against the will” and take as much of the estate as he or she would be entitled if you left no will at all.

Except in the case of a decedent who nominates someone else to serve, the surviving spouse has priority over all others to serve as personal representative (executor).  The surviving spouse also may assert a
claim against the decedent’s estate for a “family allowance” of up to $30,000 and the right to an “exempt property allowance” of up to $30,000. Rights to exempt property have priority over all claims against the estate, except claims for the costs and expenses of administration, and reasonable funeral and burial expenses.

The surviving spouse also possesses beneficiary rights under employee plans
governed by the Employee Retirement Income Security Act, unless he or she has executed a written waiver of rights to receive them.