What Is Common LawMarriage?
And Why Does It Matter for Estate Planning?
We frequently come across situations having to do with “common law marriage.” It’s a particular issue we keep an eye out for because in the state of Colorado, it can complicate situations down the road if not addressed early on. To understand what makes it such a difficult issue, we need to first understand what common law marriage actually is.
marriage. A determination as to whether or not a common law marriage existed can be made only by a court, and then only after the fact. You cannot just declare yourselves to be married or ask a court to declare that you are married. You would just get a marriage license and follow the requisite state rules. Over the years, in the states that recognized common law marriage, a number of differing requirements were employed, such as “how long the couple had lived together.” In Colorado, only three elements control whether or not a common law marriage existed: First, the couple must have intended that they were married; second, the couple must have held out to others that they were married; and third, they must have consummated the marriage. Ultimately, since only courts govern common law marriages, and judges are still subject to their own opinions and prejudices, common law marriages can still be difficult to determine and the same, or similar, facts may give different results, depending on the judge. That brings us back to the world of estate planning. When there is a split between a couple or when one dies, it sometimes happens for a partner to try to assert that a common law marriage existed in order to receive rights and privileges of a spouse or a surviving spouse. That’s why it’s important to seek the knowledge of a skilled attorney if there is any possibility that a common law marriage claim can be made.
Our legal system is a mix of “common law” (historical rules and traditions) and statutory law (legislated legal codes).
Common law marriage is a marriage that is recognized under traditional “common law” rather than under the laws of a state. Historically, this was to allow some couples who were not formally married to be treated as if they were married if they met specific criteria. Back when the U.S. was still young, transportation was difficult and slow. People were spread out, so many couples didn’t have the resources to get an official marriage license and formal ceremony conducted by an appropriate official. Because it would be unfair to deny the rights and privileges of marriage to those who were unable to fulfill the formal requirements (and “bastardy” was very serious), judges, acting in accordance with the “common law” as we inherited it from England, allowed for such isolated families to be treated as if they were formally married. Since the “common law” is derived from court action and not from statutory laws, the requirements for a valid “common law” marriage varied from state to state and from time to time. As modes of transportation got better and statutory marriage became easier, common law marriage became less and less necessary. Today, only eight states, including Colorado, still have provisions for common law
For any questions or concerns regarding estate planning and common law marriage, call our office today at 303-741-2400 for a free consultation.
Trivia
Roasted Rosemary Brussels Sprouts and Potatoes
How did the term “gerrymandering” come about?
If you’re having trouble getting the kids to eat Brussels sprouts, try this delicious vegan recipe as a side dish. Every vegetable tastes better roasted!
Submit your answers to Email@JRPhillipsLaw.com.
INGREDIENTS:
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1 3/4 lbs fingerling potatoes, halved lengthwise 3 cups Brussels sprouts, trimmed and halved
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2 tbsp fresh rosemary, minced
4 tsp olive oil 1 1/2 tsp sugar 1 tsp sea salt 1/4 tsp pepper
Correct answers will be entered into a drawing on Oct. 31 for an Amazon gift card.
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3 cloves garlic, minced
DIRECTIONS:
1. Preheat the oven to 400 F and line a baking sheet with parchment paper. 2. In a large bowl, combine all ingredients. Toss until the Brussels sprouts and fingerlings are evenly coated with oil and seasonings. 3. Spread the mixture on the baking sheet, then bake 35–38 minutes, stirring halfway through. Add more salt and pepper as desired, then serve!
Inspired by ‘The Oh She Glows Cookbook’
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