Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Joint Income Tax Returns and Common-Law Marriage in Colorado

Colorado is one of about ten states that recognize common law marriage. In a 1987 case, People v. Lucero, the Colorado Supreme Court held that “common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” The couple’s agreement to be married need not be explicit and may be inferred from the couple’s conduct. Under Lucero, “[t]he two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife.” The court listed a number of behaviors that a court may consider in analyzing those two factors: joint bank or credit accounts, joint ownership of other property, the woman’s use of the man’s surname, the use of the man’s surname by children born to the parties, and the filing of joint tax returns.

A recent Colorado Court of Appeals case, Estate of Yudkin, involved a couple named Viacheslav Yudkin and Tatsiana Dareuskaya. When Viacheslav died without a will, Tatsiana asserted that she was his surviving common-law wife and entitled to an intestate share of his estate. The trial court found that they had agreed to be married, had cohabited, and had a reputation in the community as a married couple. But the trial court held that there was no common law marriage based on the behaviors listed in the Lucero case. The couple did not maintain joint accounts and did not jointly own any vehicles or real estate, Tatsiana did not use Viacheslav’s surname, neither party’s children from prior relationships used the other party’s surname, they had no children together who could have taken either surname, and “most convincing is they failed to file any joint Federal or State Tax Returns during the 8 years they were living together.”

Tatsiana appealed, and the Colorado Court of Appeals reversed the trial court. The Court of Appeals held that the trial court had misapplied Lucero. According to the Court of Appeals, when there is an agreement to be married and the two essential factors set out in Lucero—cohabitation and a reputation in the community as husband and wife—are established, there is a common law marriage and the other behaviors listed in Lucero, including joint income tax returns, are irrelevant.

The Court of Appeals remanded the case to the trial court with a direction to enter a finding that Viacheslav and Tatsiana were common-law married.

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