Longmont, CO asked in Probate and Wrongful Death for Colorado

Q: Do I have any rights here? Is he my husband?

Last year my s/p and I filed taxes together. He recently was killed by a drunk driver. We were together 4 years. I told his mother I already filed taxes for this year which I plan on doing. We were practically married and everyone knew it. He made this huge post on FB claiming me etc. I’m his legacy contact on everything. This doesn’t make any sense why she gets to claim his insurance etc.

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1 Lawyer Answer
Rebecca Pescador
Rebecca Pescador
  • Probate Lawyer
  • Westminster, CO
  • Licensed in Colorado

A: First, my condolences on your loss. Please make a little time to take care of yourself. You have a lot going on and I'm sure it's more than overwhelming. You'll make it through it. You have to take care of yourself so you can keep your wits about you.

This is a really tough situation to be in. It is one of the really big problems with a common law marriage. Now you have to prove it was a marriage after one of you is gone. You can take this to court and try to prove that you were common law married. If you succeed, you will have spousal rights; common law spouses have spousal rights, they just have to prove they are spouses first. It can be difficult to prove in many instances though. It will take more than just the filing of taxes and 4 years together. Your comment that "we were practically married" indicates that this may very possibly not be winnable.

Common law marriage in Colorado is about the totality of the circumstances, and about how you presented yourselves in the community. Filing taxes together is an indicator, and can be one with significant weight if you filed as married. It is, however, only 1 indicator and is unlikely to be enough to prove a common law marriage alone. The length of time you were together is a factor, but very rarely carries much weight. Whether you had financial obligations or assets together is a factor, and may or may not carry much weight. How did you introduce yourselves in the community? Did you refer to each other as "husband" and "wife"? If everyone knew you were "practically married", that indicates that you did not present yourselves as if you were married, but as if you were committed. If that is the case, then you are not at all likely to be able to win this, because the proof leans toward "not married at the time of death".

Insurance and financial accounts will go to whomever he had listed as the beneficiary. If he failed to list a beneficiary, then it will go into his Estate. If he had children, his children would have a claim for at least a portion of his Estate. If not, then his parents would be next in line under the statute.

Without a Will and if you can't succeed in proving there was a common law marriage, I'm afraid you're in a very bad position. Proving common law marriage is a very fact specific inquiry though, and there is no one magic thing that makes it. If you think you have more circumstances that might help to prove the common law marriage, then you should consult with an attorney to go over those facts and determine whether they are enough to make it possible to win on that issue. If you determine, with the help of an experienced attorney, that there is enough, then you can file and have your chance to present your proof to the court. If you do so, be prepared for a fight. These often remain messy, even beyond the hearing.

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