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

Claims of common law marriage often arise in the context of an estate where a purported common law spouse asserts the rights of a surviving spouse, including priority to act as personal representative, statutory allowances and an elective share.  In litigation, determining whether a common law marriage exists can be an expensive, fact intensive inquiry.  It can also be particularly challenging in the context of an estate where one party is deceased.

The Colorado Supreme Court recently published a trio of cases addressing the test for common law marriage.  Hogsett v. Neale, 478 P.3d 713 (Colo. 2021); In re Estate of Yudkin, 478 P.3d 732 (Colo. 2021); and LaFleur v. Pyfer, 479 P.3d 869 (Colo. 2021).

The prior test for common law marriage in Colorado was codified in People v. Lucero, 747 P.2d 660 (Colo. 1987).  Common law marriage could be established “by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual assumption of a marital relationship.” Id. at 663.  Lucero provided a series of factors for a court to consider including the following: cohabitation; reputation in the community as husband and wife; maintenance of joint banking and credit accounts; purchase and joint ownership of property; filing of joint tax returns; and use of the man’s surname by the woman or by children born to the parties.  Id. at 665.

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

a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage; followed by conduct manifesting that mutual agreement.  The core query is whether the parties intended to enter a marital relationship – that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. …courts should accord weight to evidence reflecting a couple’s express agreement to marry.  In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct.

Id. at 715.  The Hogsett Court disavowed the heteronormative terms in Lucero, but stated that some of those factors could still be relevant depending on the circumstances and added the following additional factors for possible consideration:

evidence of shared financial responsibility, such as leases in both partners’ names, joint bills, or other payment records; evidence of joint estate planning, including wills, powers of attorney, beneficiary and emergency contact designations; and symbols of commitment, such as ceremonies, anniversaries, cards, gifts, and the couple’s references to or labels for one another.  Courts should also consider the parties’ sincerely held beliefs regarding the institution of marriage.

Id. at 725.

In LaFleur, the Court held that a same-sex common law marriage may be formed before Colorado recognized the fundamental 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 rings before family and friends.  They also signed a document entitled “Certificate of Holy Union.”  The Court upheld the trial court’s ruling that this couple was common law married as of 2003 even though same-sex marriage was not legal in 2003.  The Court reasoned that because the US Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015) struck down state laws prohibiting same-sex marriage as unconstitutional, the law was void ab initio, or in other words, treated as though it never existed.  LaFleur, at 880.  The Court concluded that Obergefell be given retroactive effect.  Id. at 882.  The Court further reasoned that even if the marital relationship was not recognized as legal at the time, that does not change the nature of the relationship itself.  The couple does not have to intend the legal consequences of a marital relationship in order to enter into the relationship.  Id. at 881.

In Yudkin, the Court held that whether a common law marriage exists depends upon the totality of 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.  Yudkin, at 737.  Similarly, in LaFleur, the Court pointed out 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 a couple may choose not to broadly publicize their relationship for reasons other than their lack of mutual agreement to be married.  LaFleur, at 844.

There is no common law divorce, so once a common law marriage exists, a couple must go through the legal dissolution process to divorce.  When considering conduct that establishes a common law marriage, facts that show that a relationship may have deteriorated does not negate an earlier agreement to be married. LaFleur, at 844.

The opinions include interesting concurrences and dissents, including the argument to join the majority of states in completely abolishing the concept of common law marriage.