Be Sure You’re a “Surviving Spouse” – Not a Live-In Partner

Filed Under (Probate) on 09-13-2012

Death of a spouse, When a spouse dies, estate without a will

By Marilyn McWilliams, JD  and Rachel Brand

When your spouse dies, it is crucial that you establish your rights as the surviving spouse.  If you are “statutorily married,” in other words, with a ceremony and a government-issued license, you should have no problem.

But because Colorado recognizes common law marriage, some cohabitating couples believe they can easily prove they are married, if needed, should one partner die.

Unfortunately, many people use the principle of common law marriage as a cover for living together without any intention of being truly married. Also, Colorado courts are filled with people who allege they are the common law spouse of a deceased person, only to get a portion of the deceased person’s property.

The bottom line is that without a written record, witnesses or a ceremony, it can be difficult to prove common law marriage posthumously in court – and therefore become eligible for surviving spouse benefits. 

What is common law marriage?

Colorado is among the few states that recognizes common law marriage.  You are common law married if you:

•    Live together and “hold yourself out” as married – describing your relationship as married, and not that you plan to get married some day;
•    Neither one of you is married to someone else at the same time; and
•    You are both at least 18 years old.

The rights of surviving spouses

Surviving spouses have distinct benefits.  In Colorado, the surviving spouse is typically named the Personal Representative, or executor/executrix, of the will.  If your spouse died without a will, you as the surviving spouse would be the first  choice for Personal Representative.

Second, in Colorado, a surviving spouse has a right to half of the deceased’s “augmented” estate. Calculating the value of the augmented estate is a complex, legally constrained endeavor, but in general, it’s any property that you and your deceased spouse owned at the time of death, plus any property your deceased spouse gave away shortly before death.

Finally, the surviving spouse has the right to Social Security, Veteran’s and pension benefits, if any exist.

Proving your status as surviving spouse

Some evidence of common law marriage includes:

•    Having the same last name
•    Sharing checking and savings accounts
•    Filing joint tax returns
•    Owning property together
•    Listing each other as spouses and beneficiaries on retirement plans and life insurance forms.

Still, if you are common law married and wish to receive survivor benefits, you may want to call a qualified family law attorney for additional help.

For more information about the practical and emotional issues related to handling a spouse’s affairs, see Life After Death – a Legal and Practical Guide for Surviving Spouses  by Marilyn W. McWilliams, J.D.