In Colorado, common law marriage presents unique opportunities and challenges, particularly when one partner dies without a will (intestate). Common law marriage can affect inheritance rights, but proving such a marriage posthumously can be complex. Understanding Colorado’s common law marriage requirements, along with potential complications in probate and possible alternatives, can offer clarity for those considering or involved in these relationships.

Requirements for Common Law Marriage in Colorado

Unlike most states, Colorado recognizes common law marriage without a formal ceremony or marriage license. This allows couples to achieve a legally recognized marital status simply by meeting certain conditions. However, the requirements are nuanced and can lead to ambiguity. Colorado courts generally require these elements to establish a common law marriage:

1. Intent and Agreement – Both partners must mutually agree to be married and intend to enter into a marital relationship. Unlike a traditional marriage, this agreement is often informal, and there’s no need to file paperwork with the state.
2. Cohabitation – The couple must live together, though there’s no minimum time requirement. Cohabitation alone, however, does not create a common law marriage; it must be paired with the intent to be married.
3. Public Presentation as Married – The couple should present themselves publicly as a married couple. Examples include referring to each other as “spouse,” filing joint taxes, or using the same last name. Sharing assets or accounts and introducing each other as husband or wife can help establish this element.

Because common law marriage relies on subjective evidence, proving it in probate or other legal proceedings can be contentious. Especially when one partner is deceased and can no longer corroborate the marriage.

Complications in Probate for Intestate Estates with a Common Law Spouse

When someone dies intestate (without a will) in Colorado, the estate is distributed according to state laws. If a common law spouse claims an interest in the estate, several challenges may arise, particularly if family members or other heirs dispute the validity of the marriage. Here are some common complications:

1. Burden of Proof – A common law spouse must provide sufficient evidence that a marriage existed. In probate, the burden of proof can be high, especially if the deceased’s family contests the claim. Friends, financial records, joint property deeds, or shared insurance policies can help. Courts often evaluate each claim on a case-by-case basis.
2. Conflicting Testimony – Disputes frequently arise when family members or other beneficiaries contest the common law marriage. Family members may argue that the deceased did not consider themselves married, leading to contentious court battles. This can delay probate proceedings and diminish estate value.
3. Ambiguity in Asset Division – Colorado’s intestate succession laws prioritize spouses and children. If a common law spouse’s status is verified, they could inherit a substantial portion of the estate. This may lead to conflicts among family members who might feel entitled to certain assets. If the marriage is contested, however, the estate distribution may change, potentially leading to different asset allocations and disputes over property ownership.
4. Risk of Disqualification – If the court does not find adequate evidence to support the common law marriage, the surviving partner may be denied inheritance rights entirely. In such cases, family members may receive the estate by default, leaving the surviving partner with no legal claim.

Alternatives and Remedies Besides Marriage

1. Draft a Will or Trust – Creating a will or trust allows individuals to specify who inherits their assets. I will bypasses Colorado’s intestacy laws. A will can name a non-marital partner as a beneficiary and executor, providing clear legal direction. A trust can also bypass probate entirely, making it particularly effective for individuals concerned about court proceedings or contestation.
2. Joint Tenancy with Rights of Survivorship – For significant assets like real estate, adding a partner as a joint tenant with rights of survivorship ensures that the property will pass directly to them upon death. This arrangement does not require proof of marriage and avoids probate, but it’s essential to ensure both parties understand the implications of shared ownership.
3. Beneficiary Designations – Retirement accounts, life insurance policies, and payable-on-death (POD) bank accounts allow individuals to designate a beneficiary. Naming a partner on these accounts ensures they will receive the asset directly without going through probate, regardless of marital status.
4. Power of Attorney and Advance Directives – Granting a partner power of attorney or designating them in an advance healthcare directive can help ensure they can make financial and medical decisions in the event of incapacity. These documents do not establish marriage, but they can support a partner’s involvement in critical matters.
5. Cohabitation Agreement – Couples who live together without marrying may consider a cohabitation agreement, which defines each party’s financial rights and responsibilities. Although it does not provide inheritance rights, it can help clarify ownership of shared property and reduce the likelihood of disputes.

Conclusion

In Colorado, common law marriage provides a flexible but sometimes uncertain pathway to marital recognition, which can be particularly challenging in probate matters when one partner dies intestate. For couples in common law marriages—or those choosing not to marry—estate planning becomes especially important. By using legal tools like wills, trusts, and beneficiary designations, individuals can safeguard their partner’s rights and reduce the risk of conflict in probate. Ultimately, planning ahead ensures that assets are distributed according to their wishes, whether they choose to marry formally or not.

If you haven’t formally tied the knot, then schedule a free 15 initial consultation to learn how I can help!