In Colorado, a common law marriage are more complicated than many people realize. Some people assume that they are common law married because they have been with their partner for many years, where in fact according to the rules, they aren’t. In other cases, people claim to be common law spouses and thereby try to claim assets that should not be theirs.
A common law marriage in Colorado requires mutual consent or agreement of the couple to enter into the legal and social institution of marriage followed by conduct manifesting that agreement. In the absence of an express or written agreement to marry, a judge will consider the parties’ conduct from which an agreement to marry might be inferred. When a judge considers the parties’ conduct, he or she will consider the totality of the circumstances and might consider:
- Who owns property and who pays the bills – are both names on property titles and bills or just one person?
- Does the couple live together?
- Does the couple file and pay taxes together?
- Are the partners respective beneficiaries of the other’s life insurance?
- Has the couple raised children together and was it under one name?
- Is the couple understood to be effectively married by friends and family?
- Did the couple prepare estate plans jointly? Did they reference the other as a spouse or partner?
- What symbols of commitment did the couple use, if any? Did they celebrate anniversaries?
The test to qualify as common law married can be very imprecise and is not based on the length of a relationship or co-habitation, as many people assume. In Colorado, the case law is based on the cases of the People vs Lucero, from 1987 and a trio of cases from 2021 (Hogsett v. Neale, In re Estate of Yudkin, and LaFleur v. Pifer)
To show how this can play out in elder law, and how common law marriages can be used as a tool for those who want to exploit the elderly, I’d like to share the story of a recent case with you.
Common law marriage case study – trying to claim a common law marriage
Trudy was in her mid-fifties when she experienced a massive stroke that left her paralyzed on one side of her body and only able to say “yes” and “no”. At the time she was living with her boyfriend Aaron, who had beat her regularly and on one occasion had attempted to kill her.
After the stroke, Trudy’s parents and brother took her out of that environment and tried to get a guardianship and conservatorship to be able to take care of her. However, at this point, Aaron declared himself a common law husband and started to take money out of Trudy’s accounts, sold Trudy’s truck, and her Harley Davidson motorcycle. The family tried to stop this by freezing her accounts.
To protect Trudy, the family went to a hearing on both the guardianship & conservatorship and the common law marriage issues. They were contesting that Aaron was only Trudy’s boyfriend and not her common law husband and so did not have a right to her assets.
In the hearing, Aaron presented one utility bill with his name on it and two rent bills that identified him as the “tenant”, not the “husband”. The court found that he was not a common law spouse and it was also inappropriate for him to be the guardian and conservator. Instead, Trudy’s father and brother now have co-guardianship and co-conservatorship, to ensure that Trudy’s affairs are taken care of. In the same hearing, the judge also ordered Aaron to take Trudy’s animals from the house and take them to the family.
Unfortunately, Aaron decided to ignore the ruling and continued to present himself as Trudy’s husband to banks and other institutions to get control of her assets and money. He also refused to leave the house, which was in Trudy’s name only. The family was then able to proceed to evict him by obtaining an order of possession and the local Sheriff was able to remove his possessions from the house and remove him.
In this case, the wide-ranging test for common law marriage showed that Aaron was trying to take advantage of Trudy, but was not in fact her husband. We were able to secure the protection Trudy needs for her care and assets, as well as get back the animals she loves!
If you have any questions about financial exploitation or elder law, please get in touch on 720-457-4537 or by emailing info@rockymtnelderlaw.com.
