August 21, 2019

Colorado Court of Appeals: District Court Erred in Giving More Weight to Tax Returns Than Other Indicia of Common Law Marriage

The Colorado Court of Appeals issued its opinion in In re Estate of Yudkin on Thursday, February 21, 2019.

Probate—Family Law—Common Law Marriage.

Yudkin, the decedent, died intestate. Yudkin’s ex-wife Shtutman sought informal appointment as the personal representative of his estate. Appellant Dareuskaya objected to Shtutman’s appointment, claiming that she was Yudkin’s common law wife and thus had priority as the personal representative. After an evidentiary hearing, the magistrate, sitting in probate, found that even though Yudkin and Dareuskaya agreed to be married, cohabitated for eight years, and had a reputation in their community as a married couple, no common law marriage existed because they did not file joint tax returns and other indicia of a common law marriage were absent.

On appeal, Dareuskaya argued that the magistrate erred in concluding a common law marriage did not exist despite finding that the couple cohabitated and had a reputation in the community as married. Under People v. Lucero, 747 P.2d 660 (Colo. 1987), if there is an agreement to be married and the parties cohabitate and have a reputation in the community as husband and wife, a common law marriage has been established. Further, any actions taken (or not taken) by the parties after those essential factors are established are legally irrelevant. Here, the magistrate specifically found that Yudkin and Dareuskaya agreed to be husband and wife and that cohabitation and reputation in the community were established. The magistrate’s determination that no common law marriage was proven was an abuse of discretion.

The magistrate’s order rejecting Dareuskaya’s claim of a common law marriage was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

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