An updated test for common-law marriage | Holland & Hart – Fiduciary Law Blog


Colorado is one of nine states that still recognize common law marriage, including Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Utah and Texas, as well as District of Columbia.

De facto union applications often arise in the context of an estate where a purported de facto spouse asserts the rights of a surviving spouse, including priority to act as a personal representative, statutory allowances and a optional part. In the context of litigation, determining whether there is a common-law marriage can be an expensive and factual investigation. It can also be particularly difficult in the context of an estate where one of the parties has died.

The Colorado Supreme Court recently released three cases dealing with the common-law marriage test. Hogsett v. Neale, 478 P.3d 713 (Colombia 2021); In Yudkin’s domain, 478 P.3d 732 (Colombia 2021); and LaFleur vs. Pyfer, 479 P.3d 869 (Colombia 2021).

The pre-test for common-law marriage in Colorado was codified in People against Lucero, 747 P.2d 660 (Colombia 1987). De facto marriage could be established “by mutual consent or the agreement of the parties to be husband and wife, followed by a mutual assumption of a marital relationship”. User ID. to 663. Lucero provided a series of factors for a court to consider, including the following: cohabitation; reputation in the community as a husband and wife; maintenance of joint bank and credit accounts; purchase and co-ownership of goods; filing of joint tax returns; and the use of the man’s last name by the woman or by children born to the parties. User ID. to 665.

The first case of the recent trio of Colorado Supreme Court cases, Hogsett, updated on Lucero test to the following:

a de facto marriage can be established by the consent or mutual agreement of the couple to enter into the legal and social institution of marriage; followed by behavior demonstrating this mutual agreement. The main question is whether the parties intended to seize a marital relationship – that is, sharing a life together as spouses in an intimate and committed relationship of mutual support and obligation. … Courts should give weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter into a marital relationship can be inferred from their conduct.

User ID. to 715. The Hogsett The Court disavowed the heteronormative terms in Lucero, but said some of these factors might still be relevant depending on the circumstances and added the following additional factors for possible consideration:

evidence of shared financial responsibility, such as leases on behalf of both partners, joint invoices or other payment records; proof of joint estate planning, including wills, powers of attorney, beneficiary designations and emergency contact; and symbols of commitment, such as ceremonies, birthdays, cards, gifts and the couple’s references or labels for each other. Courts should also take into account the sincere beliefs of the parties regarding the institution of marriage.

User ID. to 725.

In The flower, the court ruled that a common-law same-sex marriage could be formed before Colorado recognized the basic right to marry for same-sex couples. The case involved a same-sex couple who held a ceremony in 2003 where they exchanged vows and wedding rings in front of family and friends. They also signed a document entitled “Certificate of Holy Union”. The court upheld the trial court’s ruling that the couple were de facto married in 2003, even though same-sex marriage was not legal in 2003. The court ruled that because the United States Supreme Court in Obergefell vs. Hodges, 576 US 644 (2015) struck down state laws prohibiting same-sex marriage as unconstitutional, void ab initio, or in other words, treated as if it never existed. The Flower, at 880. The Court concluded that Oberefell have retroactive effect. User ID. at 882. The Court further held that even if the conjugal relationship was not recognized as legal at the time, this does not change the nature of the relationship itself. The couple does not have to foresee the legal consequences of a marital relationship in order to enter into the relationship. User ID. to 881.

In Yodkin, the Court held that the existence of a common-law relationship depends on all the circumstances in the context of each relationship. For example, in modern relationships, a married couple may not share the same last name and may be more likely to have separate finances. Yodkin, at 737. Similarly, in The flower, the court noted that a same-sex couple may not have filed a joint tax return because it was not permitted at the time under federal law or that a couple may choose not to file a joint tax return. widely publicize their relationship for reasons other than their lack of mutual agreement to be married. The flower, at 844.

There is no such thing as a de facto divorce, so once a de facto marriage exists, a couple must go through the process of legal dissolution to divorce. When considering conduct that establishes a common-law marriage, the facts that show that a relationship may have deteriorated does not nullify a prior marriage agreement. The Flower, at 844.

The opinions include interesting concordances and dissent, including the argument of joining the majority of states in abolishing the concept of common law marriage altogether.

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