When a Colorado common law spouse dies, the surviving partner has the same legal rights as any widow or widower: inheritance under the will or intestate statute, the elective share, Social Security survivor benefits, retirement plan protections, and the full federal tax treatment given to married couples. The one difference is practical. Before most of those rights can be exercised, you usually have to prove the marriage existed, and you have to do it without your partner there to confirm it.
Proving the Marriage Comes First
Colorado recognizes a marriage without a license or ceremony when two people mutually agreed to be married and then lived in a way that reflected that agreement. That agreement is easy to describe and harder to document once one partner is gone. The burden of proof falls on the survivor, and the quality of the evidence shapes almost everything that follows.
Financial records tend to carry the most weight. Joint federal and state tax returns filed as married are especially persuasive, along with jointly held real estate, joint bank and brokerage accounts, mortgage and lease documents, and insurance policies naming each other as spouses. Beneficiary designations help. So do affidavits and testimony from friends, family, neighbors, and coworkers who knew the two of you as a married couple.
Before filing anything with a court or agency, pull these records together. An affidavit of common law marriage will typically ask when the agreement to marry began, how long you lived together, and how you presented yourselves to the public. Thorough documentation up front usually means a smoother probate process and fewer challenges from other potential heirs.
Inheriting When There Is No Will
If your partner died without a valid will, Colorado’s intestate succession statute decides who gets what, and your share depends on who else survived.
- No surviving parents or descendants of the deceased: you inherit the entire estate.
- A surviving parent but no descendants: you receive the first $300,000 plus three-quarters of what remains.
- All of the deceased’s descendants are also your descendants, and you have no other surviving descendants: you inherit the entire estate.
- Descendants who are not your descendants (such as children from a prior relationship): you receive the first $150,000 plus half of the balance.
These dollar amounts come from statute and may be adjusted periodically for inflation.1Colorado Revised Statutes. Colorado Code 15-11-102 – Share of Spouse The statute makes no distinction between a common law marriage and a ceremonial one. Once the marriage is established, your intestate share is identical to any other spouse’s.
If the Will Leaves You Out
Colorado does not let one spouse disinherit the other. If your partner left a will that gives you little or nothing, you can reject its terms and instead elect to receive 50 percent of the marital-property portion of the augmented estate. The augmented estate is broader than the probate estate alone. It pulls in assets the deceased owned, transfers made during life, and even assets you already hold.
The marital-property portion scales with the length of the marriage. It starts small for very short marriages and climbs each year, reaching 100 percent of the augmented estate after roughly ten years together. For common law couples, the start date of the marriage can itself be disputed, which is another reason strong documentation of the relationship’s history matters. The election must be filed within a specific window during probate, so if you believe you have been shortchanged, talk to a probate attorney quickly.
Assets That Pass to You Outside Probate
Not everything your partner owned has to go through probate. Some assets transfer automatically based on how they were titled.
Property held in joint tenancy with right of survivorship passes directly to you when the other owner dies. The deceased joint tenant’s interest terminates, and your ownership continues free of that interest.2Justia. Colorado Code 38-31-101 – Joint Tenancy Expressed in Instrument – When No court order is needed. You generally present a death certificate to the county recorder or the financial institution, and the records are updated.
Accounts with Transfer on Death or Payable on Death designations work the same way. If your partner named you as beneficiary on a bank account, brokerage account, or certificate of deposit, the funds go directly to you outside probate and override anything the will says about the same assets. The common law marriage itself does not have to be proven for these transfers to happen, though it may come up if someone challenges the designation.
Social Security Survivor Benefits
The Social Security Administration recognizes common law marriages from states where they are valid, so a surviving Colorado common law spouse can qualify for federal survivor benefits. These may include a monthly payment based on your partner’s earnings record, a one-time lump-sum death payment, and benefits for dependent children.
Proving the marriage to the SSA is a separate process from anything filed in probate court. When one spouse has died, the SSA requires a signed statement from you plus statements from two blood relatives of the deceased, using the SSA’s own forms, including the Statement Regarding Marriage and the Statement of Marital Relationship.3Social Security Administration. Evidence of Common-Law Marriage Supporting documents like mortgage receipts, bank records, and insurance policies strengthen the claim. If blood relatives are unavailable, the SSA will accept statements from others who know the facts if you explain why family members cannot be reached.
These benefits are independent of the estate. You can collect them even while probate is still open, which is why filing with the SSA is one of the first steps worth taking.
Federal Tax Treatment
The IRS follows state law on marital status, so a Colorado common law marriage counts as a marriage for federal tax purposes. Three consequences matter most after a death.
Filing Status for the Year of Death
Marital status for the year is normally set on December 31, but when a spouse dies during the year it is set on the date of death. You can file a joint return with your deceased partner for that year, which often produces a lower tax bill than filing separately. For the next two tax years you may qualify for the qualifying surviving spouse filing status if you maintain a household for a dependent child.
The Unlimited Marital Deduction
Federal law lets spouses transfer unlimited assets to each other free of estate and gift tax. The entire estate can pass to you without triggering federal estate tax, regardless of size. The tax is deferred, not eliminated: when you later die, assets exceeding the applicable federal exemption become taxable. This deduction applies only if you are a U.S. citizen.
Step-Up in Basis
Property you inherit from your spouse gets a new cost basis equal to its fair market value on the date of death. If you later sell the asset, capital gains are calculated from that stepped-up basis rather than the original purchase price. A home bought for $200,000 and worth $500,000 at death gives you a basis in the deceased partner’s share equal to current value.
Colorado is not a community property state, so only your deceased spouse’s share of jointly held assets receives the step-up. Your own share keeps its original basis. Real estate, stocks, and business interests qualify. Retirement accounts such as IRAs and 401(k)s do not.
Pensions and Retirement Accounts
Employer-sponsored retirement plans governed by federal ERISA rules give surviving spouses automatic protections no other beneficiary gets. For traditional pensions, the default payout is a qualified joint and survivor annuity, which guarantees you a lifetime benefit of at least 50 percent of the amount the couple would have received together. If the employee dies before retirement, a qualified pre-retirement survivor annuity provides a lifetime benefit to the surviving spouse.
These protections are automatic, and an employee cannot name a different beneficiary for a pension without the spouse’s written consent. As a common law spouse, you may need to prove the marriage to the plan administrator before the benefit is paid, and the administrator may ask for a court order. Once established, the protection is the same as for any other spouse.
Defined contribution plans like 401(k)s work differently. Federal law gives a surviving spouse priority as beneficiary in many cases, but the employee generally has more flexibility to name someone else. If you were designated as beneficiary, the funds transfer directly. If you were not, you may need to assert your rights through the plan’s claims process or in court.
Getting a Court Order of Heirship
For most formal purposes, the document you need is a court order recognizing you as the legal spouse and heir. The process usually begins with a Petition for Adjudication of Intestacy and Determination of Heirs filed in the appropriate Colorado district or probate court. The Colorado Judicial Branch publishes the standardized forms on its website.4Colorado Judicial Branch. Judgment and Decree Determining Heirs or Devisees or Both, and of Interests in Property Filing fees vary by county and type of proceeding.
After the petition is filed, the court sets a hearing and requires that all potential heirs be notified. This step is not optional. Due process requires that anyone with a possible interest in the estate get meaningful notice and a chance to be heard. You then present evidence of the common law marriage, the deceased’s assets, and the proposed distribution. If the judge is satisfied, the court issues a formal order declaring you the legal spouse and heir.
That order becomes the key document for everything that follows. Banks, title companies, brokerages, and government agencies rely on it to transfer accounts, update deeds, and close out your partner’s affairs. Without it, you have no official paperwork proving your standing, which is why pursuing the court order is worth prioritizing even when some assets will pass to you automatically.
If You Move Out of State
A common law marriage valid under Colorado law does not stop being valid when you cross state lines. Under the Full Faith and Credit Clause, other states must recognize a marriage lawfully established in Colorado, even if those states do not allow common law marriages to be formed within their own borders.5Cornell Law School. Common Law Marriage The practical challenge is still proof. A Colorado court order establishing the marriage carries far more weight with an out-of-state bank or agency than a stack of old tax returns and utility bills.