One step forward, but maybe two back, on common law marriage under Colorado law?

Colorado is one of only a handful of states that still recognize the concept of common law marriage today. It remains a crucial concept in the administration of estates in Colorado because a common law spouse is entitled to inherit real property and receive other benefits, just as an officially married spouse.

On January 11, 2021, the Supreme Court of Colorado updated the test for proving a common law marriage in Colorado through three opinions, available here. As justification for the update, the Court noted “gender-differentiated terms and heteronormative assumptions of the [prior] Lucero test render it ill-suited for same-sex couples. . . [and] many of the traditional indicia of marriage identified in Lucero are no longer exclusive to marital relationships.” Further, the Court stated the prior test was “underinclusive” and no longer “reliable” with respect to differentiating between marital and non-marital unions. While the updated test is practical and more reflective of the times, the Court indicated that the concept of common law marriage may be outdated and ripe for reconsideration by the legislature.

Under the prior Lucero test, a common law marriage was proved by showing it was established “by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” Cohabitation and an open acknowledgement of the relationship as husband and wife in the community were crucial factors, and the following non-exclusive “specific behaviors” could also be considered: (1) ownership of joint accounts; (2) joint ownership of property; (3) use of the man’s surname by the woman; (4) use of the man’s surname by children born to both parties; and (5) filing joint tax returns.

Mutual consent to be married and actions consistent with being married are still the primary factors required to prove a common law marriage. Where the new test differs, however, is in what conduct courts should consider when determining whether there was implicit consent to be married and subsequent actions that were consistent with that consent. For example, the Lucero test required courts to find the parties were “husband and wife” and to consider whether any children used the man’s surname. Those criteria could be “impossible” for same-sex couples to meet. In addition, the Supreme Court recognized the growing trend towards non-marital cohabitation. The Court ultimately concluded that the inflexibility of the Lucero test has rendered it “unrealistic, impracticable, or even dangerous” for some same-sex couples.

The Court identified several new factors courts should consider, in addition to those outlined in Lucero: (1) “shared financial responsibility, such as leases in both partners’ names, joint bills, or other payment records; (2) evidence of joint estate planning, including wills, powers of attorney, beneficiary and emergency contact designations; and (3) symbols of commitment, such as ceremonies, anniversaries, cards, gifts, and the couple’s references to or labels for one another.” Moreover, in a further departure from the Lucero test, courts “should also consider the parties’ sincerely held beliefs regarding the institution of marriage.”

Although the Court expanded the definition of common law marriages for now, it noted that Colorado is one of only ten jurisdictions that still recognize common law marriage. The Court therefore questioned whether the time has come to abolish common law marriages. One Justice noted separately that this is a job for the legislature. Couples should therefore not rely on the new expanded definition of common law marriage as a step forward to recognizing unconventional unions because it seems likely that the entire concept of common law marriage may be abolished soon.

Tags:  Common law marriage, Lucero, Hogsett, Yudkin, LaFleur, same-sex couples, cohabitation