Tcl - the Common Law Spouse in Colorado Estate Administration - September 2006 - Trust and Estate Law
| Publication year | 2006 |
| Pages | 85 |
2006, September, Pg. 85. TCL - The Common Law Spouse in Colorado Estate Administration - September 2006 - Trust and Estate Law
September 2006
Vol. 35, No. 9 [Page 85]
Trust and Estate articles are sponsored by the CBA Trust and Estate Section. They focus on topics including trust and estate planning and administration, elder law, probate litigation, guardianships and conservatorships, and tax planning.
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Claims of a common law spousal relationship can introduce significant uncertainty in estate administration. Knowing how the relationship arises and where to find evidence to support or contradict a claim of marriage is crucial to proper administration and prevention of fraud against a decedent's estate and its ultimate beneficiaries.
If the first question in an estate administration matter sounds something like, "Is [the putative decedent] really dead?" it probably indicates that the case will be complicated, albeit interesting. Another leading indicator of trouble ahead could be whether the attorney's threshold questions are, "Were (or are) you married?" and "To each other?" In estate planning and estate administration, pinpointing whether a client or a decedent was married is always important and usually simple. However, Colorado lawyers can find their work complicated by the issue of a real or alleged common law marriage, the often misunderstood matrimonial state with wide-ranging legal implications for heirship, retirement benefits, estate taxes, and possibly litigation in any or all of those areas.
This article provides an overview of common law marriage in Colorado and how the existence of a common law marriage can affect estate administration. A discussion of the elements of common law marriage and other procedural issues is included.
The State of the Law
In Colorado, various judicial and public officials and clergy may solemnize marriages, or the parties to a marriage simply may, without an officiant, solemnize their own marriage by declaring themselves to be married to each other.(fn1) The statutorily recognized officiant who solemnizes the marriage, or a party to the marriage, must complete a marriage certificate form and forward it for recording to the county clerk and recorder. The statutes do not specifically address the county to which the certificate must be returned, but, as a practical matter, the law seems to imply that they should be returned to the county issuing the application. This requirement is intended to provide written proof and public notice of the existence of the marriage and the date it occurred. However, Colorado also recognizes that a "common law" marriage may arise between a man and a woman who intend and agree to be married and who hold themselves out to third parties as husband and wife - without any ceremonial act by a third party or any formal, public registration of their marital status.
Common law marriage, as it currently exists in the United States, may have resulted from issues that existed when the country was much younger, such as the long distances between settlements, the scarcity of clergy and judges to solemnize marriages, and lack of ready access to repositories of public records.(fn2) Among the earliest references to common law marriage in Colorado is the 1897 Colorado Court of Appeals reference in Taylor v. Taylor.(fn3) The Colorado Supreme Court first recognized common law marriage in Klipfel's Estate v. Klipfel.(fn4)
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.(fn5) Therefore, if a marriage validly arises at common law, it is recognized as valid everywhere in the United States. However, only a handful of states, including Colorado, permit a common law marriage to arise from its inception. (See accompanying sidebar entitled "Common Law Marriage by State" for a list of states that permit common law marriage, as well as the applicable statute or case law.) The difficulty this creates in estate planning and administration often turns on issues relating to what supports or contradicts the existence of a valid common law marriage and, if one exists, when the required elements came together to create it.
What is at Stake?
When the death of a party ends a marriage and a decedent's estate is administered, it is critical first to identify the decedent's assets and determine if they constitute "probate" assets. Probate assets can pass according to the terms of a will or according to intestacy laws if the decedent died intestate (without a will). Regardless of whether the decedent had a will, probate assets are those assets the decedent owned in his or her own name alone, or that he or she co-owned with others as a tenant in common and that do not pass according to a beneficiary designation in favor of a named individual. Probate assets do not include: (1) assets the decedent held in joint tenancy; (2) "pay on death" or "transfer on death" accounts; or (3) life insurance and retirement assets payable by beneficiary designation to persons or entities other than the decedent's estate.(fn6)
Common Law Marriage by State
Alabama:Piel v. Brown, 361 So.2d 90, 93 (Ala. 1978).
Colorado:Deter v. Deter, 484 P.2d 805, 806 (Colo.App. 1971).
District of Columbia:Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977).
Georgia: GA Code Ann. §§ 19-3-1 and -1.1, invalidating common law marriage on or after January 1, 1997.
Idaho: Idaho Code § 32-301, invalidating common law marriage effective January 1, 1996.
Iowa: Iowa Code § 595.11.
Kansas: Kansas Statutes § 23-104a(c).
Montana: Mont. Code Ann. § 40-1-311.
New Hampshire: (limited effectiveness only at death) N.H. Rev. Stat. Ann. § 457:39 (to establish marriage for purposes of identifying deceased spouse).
Ohio: Only those common law marriages entered into before October 10, 1991 remain valid. Ohio Code Ann. § 3105.12.
Oklahoma: Okla. Stat. Ann. title 43 § 1; Standefer v. Standefer, 26 P.3d 104 (Okla. 2001).
Pennsylvania: Pennsylvania has abolished recognition of common law marriages that would have arisen after January 1, 2005.
Rhode Island:eMelo v. Zompa No. 01-174-A (R.I. 2001).
South Carolina:Ex Parte Blizzard, 193 S.E. 633, 634 (S.C. 1937); Kirby v. Kirby, 241 S.E.2d 415, 416 (S.C. 1978). The days of common law marriage may be numbered in South Carolina. Senate Bill 1106 would invalidate common law marriage after June 30, 2007. That bill and companion legislation are pending.
Texas: Tex. Fam. Code Ann. §§ 2.401-2.404 addressing "informal marriage."
Utah: Utah Code Ann. § 30-1-4.5.
The "Intestate Share"
After the "probate" or "non-probate" status of the decedent's assets has been established, estate distribution must account for whether the decedent died intestate. If the decedent died without a will, the surviving spouse in Colorado has the following rights to the decedent's probate assets (or "intestate estate"):
1. If no descendant or parent of the decedent survives, the surviving spouse receives the entire intestate estate.
2. If all of the decedent's surviving descendants also are descendants of the surviving spouse, and there are no other descendants of the surviving spouse who survive the decedent, the surviving spouse receives the entire intestate estate.
3. If no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent, the surviving spouse receives the first $200,000, plus three-fourths of the balance of the intestate estate.
4. If all of the decedent's surviving descendants also are descendants of the surviving spouse, and the surviving spouse has one or more surviving descendants who are not the decedent's descendants, the surviving spouse receives the first $150,000, plus one-half of the balance of the intestate estate.
5. If one or more of the decedent's surviving descendants...
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