Does a common-law wife have the rights to go against a mother’s burial wishes?

I have an uncle that recently passed away in CO. My grandmother, his mother, resides in TX which is where we are from. Upon hearing of his death she inquired about having him shipped to TX for his burial. We are now learning that his girlfriend of about 8 years is claiming common-law marriage and is fighting to have him buried in CO. She has no funds to bury him and is seeking assistance from the state. We are being told that if she gets assistance from the state, he has to be buried in CO. I need to know if she has that right over his mother and what to do?

Asked on November 30, 2010 under Estate Planning, Virginia


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your loss. I might also suggest that someone from Texas speak with an attorney about becoming the Personal Representative of your Uncle's Estate as soon as you possibly can, even applying for emergency temporary Letters of Administration in order to bury the body.  His "wife" would have to be notified under the petition and then it becomes incumbent up to her to challenge the appointment and to prove that she has a more legitimate interest here.  It may move the process in a more timely fashion, in other words, in time to allow you to bury your Uncle with the dignity that I am sure that he deserves.  Good luck to you all.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If this woman can offer legitimate proof of a common law marriage, then yes, as the legalwife she has rights over the deceased's mother.  However, merely living together for a long period of time does not make a common law marriage.  In order to establish a common law marriage in CO, you must prove that:

  • You cohabitated;
  • You mutually agree to be married; and
  • You held yourselves out to the public or third parties as married. 

Examples could include the filing of joint tax returns, the holding of joint assets, introducing yourselves as "husband" and "wife", etc. 

To explore all of this, I suggest that you place a call into a CO attorney.

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