Colorado Common Law Marriage

Posted by: Oct 09, 2018By Brian Stutheit


Colorado recognizes common law marriages. A 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.” People v. Lucero, 747 P.2d 660, 663 (Colo.1987).  Telling others that they are married is often cited as a sign of a couple’s reputation that they are married. Specific behavior that may be considered includes maintenance of joint banking and credit accounts; purchase and joint ownership of property; the use of the man’s surname by the woman; the use of the man’s surname by children born to the parties; cohabitation, and the filing of joint tax returns. However, there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide proof from which the existence of their mutual understanding can be inferred .

Most states do not recognize common law marriage, because they fear perjury and fraud. Recognizing common law marriage also leads to all sorts of questions which states that only recognize official marriages do not confront.  Questions which have arisen in Colorado include whether a person may invoke the spousal privilege without official evidence he is married, whether the incest laws apply where there is no official marriage, and whether a surviving person is actually a spouse entitled to a share in a deceased person’s estate.  In Colorado, a spouse cannot be disinherited without her consent, so there is plenty of litigation over whether or not the surviving member of a couple was actually the decedent’s spouse.

Our neighbors in Utah, Texas, Kansas and Oklahoma do recognize common law marriage.  The U.S. Constitution requires that all states recognize as valid a marriage that occurs in a sister state according to the sister state’s law.  So, a common law marriage entered into in Colorado must by law be accepted by another state, even if that other state does not recognize common law marriages.

In general, the I.R.S. does not differentiate between civil marriages and common-law marriages for federal tax purposes. See Revenue Ruling 58-66 (treating common-law marriage as valid, lawful marriage for federal tax purposes) and Revenue Ruling 2013-17 (reiterating that common-law marriages are valid, lawful marriages for federal tax purposes).