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

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.

Continue reading
  929 Hits
929 Hits

Estate of Petteys v. Farmers State Bank of Brush, 2016 COA 34, No. 14CA1581

On March 10, 2016, the Colorado Court of Appeals issued an opinion that reversed the trial court and held that an irrevocable trust, a part of which was included in the gross estate of the decedent, was required to contribute its pro rata share of estate taxes under Colorado's estate tax apportionment statute. Our firm had prepared the Will for the decedent, in which estate taxes attributable to the irrevocable trust's inclusion in his gross estate were specifically apportioned to that trust. The trust had been created in 1958. The decedent died in 2009; a U.S. Estate Tax Return was filed in 2010, the estate paid the entire tax due, and the personal representative requested that the trust contribute its share of the tax. When the trustee refused, the personal representative brought suit. Initially, the trial court held that because federal law was silent as to apportionment to such interests prior to the 1986 effective date for IRC 2207B, the Colorado statute at 15-12-916 applied, but the court did not decide certain other issues. After the IRS completed its audit in October 2012, final request for contribution was made. A hearing was held before the trial court in 2015 on the remaining issues, and the court ordered, among other things, that the effective date statute at 15-17-101 permitted the court to refuse to apply the Colorado Probate Code if it found it to be "inequitable." The trial court found that it would be inequitable to force the trustee to pay its pro rata share of the tax and entered judgment for the trustee. The personal representative appealed.

Continue reading
  1262 Hits
1262 Hits

Colorado Court of Appeals Reaffirms Critical Element of Fraudulent Concealment Claim

On March 27, 2014, the Colorado Court of Appeals issued its published Opinion in Jehly v. Brown, affirming the trial court's findings in favor of the Defendant, Allen Brown.

Continue reading
  2440 Hits
2440 Hits

The 2013 Revised Dead Man's Statute

By Herb E. Tucker, Esq.

The revisions to the Colorado Dead Man's Statute went into effect on August 7, 2013 as a result of the General Assembly passing Senate Bill 13-077. The new statute applies retroactively to all pending cases, unless the court determines that it is in the interest of justice that the former statute apply.

Colorado has had a Dead Man's Statute on the books since it was a territory. In 1999, the Colorado Legislature rejected repeal of the statute recognizing, as a matter of public policy, the need for the statute to reduce the risks of false claims against decedents and incapacitated persons at trial. Despite creative arguments by crafty trial lawyers, the 2002 Dead Man's Statute has survived twelve years of judicial scrutiny, with only one published Colorado Court of Appeals case construing the statute. In conjunction with the Elder Law Section, the Trust and Estate Section of the CBA has approved the subcommittee recommendations to refine the 2002 statute to provide greater clarity to both trial lawyers and judges throughout the state. It is the subcommittee's expectation that the new statute will, for many years to come, continue to survive challenge and level the playing field in cases involving decedents or persons incapable of testifying.

For more information on the 2013 changes, contact an attorney at Wade Ash, or see Herb Tucker and Marc Darling's article in the upcoming August, 2013 issue of The Colorado Lawyer.

  1232 Hits
1232 Hits