Common Law rights

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Common Law rights

What if a man and a woman have been together for 10 years and one of them dies, what rights does the the surviving member have regarding assests?

Asked on May 19, 2009 under Estate Planning, Colorado

Answers:

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

Answered 11 years ago | Contributor

Under Colorado law, this would be considered to be a "common law marriage".  This is a term used to describe a marriage which has not complied with the statutory requirements most states have enacted as necessary for a ceremonial marriage.  Colorado is part of the minority of states which recognize the validity of common-law marriages.    

A common-law marriage is valid for all purposes, the same as a ceremonial marriage.  It can be terminated only by death or divorce.  The common-law elements of a valid marriage are that the couple (1) is free to contract a valid ceremonial marriage, i.e., they are not already married to someone else; (2) holds themselves out as husband and wife; (3) consents to the marriage; (4) cohabits; and (5) has the reputation in the community as being married.  The single most important element under common law was the mutual consent of the couple presently to be husband and wife.  All the rest was considered evidence of this consent or exchange of promises.  There is no specific time period; the only time requirement necessary is time enough reasonably to establish the above-listed circumstances.

There's no such thing as a Colorado common law divorce but if the couple breaks up, they also enjoy all of the rights, privileges, and headaches of a formal Colorado divorce or legal separation.  Therefore, however the assets would have been split up if there were a formal marriage and divorce, is how the common law assets will be distributed.

If there's a will assets are distributed according to its terms.  If one of the parties dies intestate (without  a will) under Colorado law, property passes to the surviving spouse and blood relatives only. (Adopted children are treated exactly like natural-born children under the law.) Here are some examples of how the law works:

  • If a decedent is married, Colorado law provides that the surviving spouse will receive the majority of the estate. The actual amount varies, depending upon whether the decedent and the surviving spouse have mutual or separate children or no children at all. In many cases, the decedent's children or parents receive a share of the estate.
  • If a decedent is single and has children, the children divide the estate equally. If one of the decedent's children is dead, the grandchildren in that branch of the family receive the dead child's share.
  • If a decedent has no spouse, children or other descendants, the decedent's parents receive the estate. If the decedent has no living parents, the estate goes first to the decedent's siblings, then to nieces and nephews and their children. If no relatives are living at this level, the estate goes to grandparents, then to aunts and uncles, then to cousins and their children. If no relatives are living at this level, then the remaining property will go to the State of Colorado.

Under Colorado law, the relationship between the decedent and his or her heirs has to be proved in court. The more remote the relationship, the more time-consuming and costly this might be. A will leaving the estate to named individuals eliminates the need to prove relationship prior to distribution of assets..

Under Colorado law, property is distributed by mathematical formula with no attention given to needs of family members. This may not always be desirable or meet the needs of family members or the wishes of the decedent.

 

 


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