In re Estate of Yudkin (Colorado 2021)

2021 CO 2 (2021)
January 2021

A common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct that supports this agreement. All the circumstances must be considered to find the agreement.  In this probate case, the husband died intestate. His ex-wife petitioned to be the personal representative of his estate. His “wife” sought removal of the ex-wife and appointment as the personal representative as his common law wife. The district court found no marriage existed under the test in place, and the common law wife appealed. The appellate court reversed, and the ex-wife petitioned for certiorari. The Supreme Court announced the new test for common law marriage. The new test requires a mutual consent or agreement that the parties are married and looks at all factors that prove the agreement, or lack of agreement, to be married. This case was remanded to determine if the parties intended a marital relationship.