A Probate Judge Finds Same Sex Common Law Marriage in Colorado

Springtime in Italy

Springtime in Italy

 

Last week I received news on a listserve that the Jefferson County District Court, sitting in probate, granted relief to a woman who claimed she was the surviving common law spouse of a decedent.  The two women had cohabited together for many years.  As is common in states recognizing common law marriage, a person claiming to be a surviving common law spouse must file a petition for intestacy and establish that the petitioner was the surviving spouse of the decedent by virtue of proving certain elements of the existence of a common law marriage.  (A surviving spouse who has married or entered  into a civil union with another person already has a certificate which shows this spousal relationship.)  This proof of common law marriage may sound straightforward, but it is not.  Colorado is one of only a handful of states which still recognizes common law marriage.  The trickier issue (which crops up in the dissolution of marriage context) of when the common law marriage began is not often before a court when it makes a determination in a decedent’s estate administration that a person is or is not a decedent’s surviving spouse.  The only salient issue for those purposes is whether the couple was married at the time of the decedent’s death.  This is what the Jefferson County District Court recently determined.  This is distinguished from the marriage dissolution context (in domestic relations proceedings), where the relevant question is when the common law marriage began.

Here’s a redacted excerpt of Judge Lily Wallman Oeffler’s ruling of May 21, 2015 on a Petition for Adjudication of Intestacy and Formal Appointment of Personal Representative:

The Court, having reviewed the Petition and the applicable law, FINDS and ORDERS as follows:

THE COURT FINDS that Decedent and Petitioner MRS. SMITH have satisfied the two elements of common law marriage: 1) the mutual consent or agreement to be married; and 2) a mutual and open assumption of a marital relationship. People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). The couple cohabitated for approximately 30 years, raised three children together, held real property and bank accounts in joint ownership, participated in a marriage ceremony in front of friends and family, recited marital vows, and wore wedding bands.

THE COURT FURTHER FINDS that “the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws.” Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir.) cert. denied, 135 S. Ct. 265, 190 L. Ed. 2d 138 (2014). Further, “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.” Id.

IT IS HEREBY ORDERED that, under the ruling in Kitchen, Petitioner is Decedent’s common law spouse, and is qualified and hereby confirmed to serve as the Personal Representative of Decedent’s estate.

So, it turns out that a same-sex couple can “hold out” as a married couple for common law marriage purposes.  Some of the indicia of such marriage will differ from those of an opposite sex couple (e.g., for a same sex couple who wasn’t able to file joint tax returns), but these will not obviously operate as  a bar to a court’s finding of the existence of a common law marriage.  It seems the institution of marriage is, in many respects, alive and well as a result of the marriage equality movement!

So, what exactly is “common law marriage” and why should any of this matter?

Common law marriage is a frontier relic.  England abandoned it in 1753, but it continues on in the states of Colorado, Kansas, Utah, Texas, Iowa, Montana and a couple east coast states.  It isn’t even really “common law” in that it is regulated by statute (except in Montana).

Many of us are celebrating  this important development of the judge’s decision excerpted above, but not without some concerns in the backs of our minds. . .  after all, marriage has evolved and changed over the course of human history and has served a variety of interests including political, economic, diplomatic, religious and other aspects of regulating human behavior and providing stability in the form of certain protections, particularly for children and more vulnerable members of society, which have historically been women.

What about the nature of a relationship between an opposite sex couple who choose not to marry but have children and a long term relationship together?  Are these considerations likely to be similar to those of a same gender couple?  This is one of the places where things get rather complicated.

And here’s another important question – What if the couple does not want to be treated as married and wants to have a relationship that is nonmarital for all intents and purposes – is this likely to be more difficult?

The likely answer to this second question is  a qualified “yes.”  While a straightforward answer to that question may be that the parties can contractually agree to a living together or cohabitation agreement, the ruling above shows the fluid nature of what is deemed to be marriage.  The simple fact that a couple may not want to be considered married for purposes of the law is not conclusive of such arrangement.  In my mind, couples who want to be considered in a relationship of a nonmarital kind can still document their relationship as such and avail themselves of certain limited protections and benefits as a result of such relationship through the use of a pre-civil union statute governing contractual arrangement known as designated beneficiary agreements.  More about that in a later post. . . .

Important to note here is that common law marriage in the U.S. does not, in contrast to many a layperson’s thinking, have a particular minimum time period associated with its existence.  This stands in contrast to cohabitation laws in many other countries such as Canada, where cohabitants are known as “common law partners” and the relationship is governed by a law passed by the Canadian Parliament in 2000 which does make marriage and cohabitation look much more similar.  This is also the case in England, where the Worker’s Compensation Act of 1906 recognized non-marital forms of co-habitation.  The law in England looks  to concern itself largely with the conferring of an economic benefit on the other partner and considers in that context who is appropriate object for the law’s protection.

Nearly three years ago I wrote a couple blog posts about legal and financial considerations for nontraditional relationships and I don’t intend to revisits those now in light of all the U.S. Supreme Court and other important decisions (including the Tenth Circuit’s Kitchen decision cited above) concern same-sex marriage, but as marriage equality seems more within reach, it seems only logical that we should take a look at the bigger picture of marriage in this country and why so many young (opposite-sex) couples choose to have children but not get married.  This development challenges the protections afforded for married couples – should they still be a “monopoly” for them?  Remedies for children and more vulnerable partners are available under contract law, but they are not consistent and vary wildly from state to state.

What about a Colorado couple (married or partners in a civil union) who want to contract away some of their rights arising from the spousal relationship?  Colorado adopted the Uniform Premarital and Marital Agreements Act in 2012 and it applies to agreement entered into after July 1, 2014.  The law is codified at Colo. Rev. Stat. § 14-2-301 et seq.    The new law made important changes regarding access to counsel and other important requirements about how the agreement is reviewed and which affect the waiver of important rights.

So the question remains . . .  how do we predict the future, make informed choices  and otherwise advise clients about what legal obligations are owed to a cohabiting non-spouse and how might this be affected by a burgeoning definition of common law marriage?  Stay tuned!

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Fiduciary Access to Digital Assets – an update of sorts

Italian Wall

Italian Wall

Well, it’s been a while since I’ve written a post about digital assets in the probate context.  This year, Colorado was one of twenty-three states whose legislatures introduced the Uniform Fiduciary Access to Digital Assets Act (UFADAA).  Keep in mind that the uniform act was endorsed by the National Academy of Elder Law Attorneys (NAELA) of which I am a member.  The Colorado House Bill to enact the UFADAA was introduced at the beginning of the year, HB 15- 1189, and can be read here.  Its short lived history is this: introduced in the Colorado House and assigned to the Judiciary Committee on January 29, committee discussion took place on February 19, and then on March 12, 2015, the House Judiciary Committee voted unanimously to postpone indefinitely further action.

Our legislature has postponed further action on this uniform law, but it doesn’t mean that it isn’t important for people and estate planning attorneys to address issues concerning access to digital assets by fiduciaries in the probate context.  According to the bill fiduciaries included the following: a personal representative of a decedent’s estate (where there is a will or codicil or also a special administrator); a conservator acting on behalf of a protected person; a trustee acting under a trust; and an agent acting under a durable power of attorney.  The bill specifically addressed each type of fiduciary and their access to a digital asset in further detail.

The Colorado Bar Association subcommittee charged with discussion of this uniform law as a Colorado bill also discussed Colorado-specific inclusions to the Uniform Act, like access by a “successor” as defined in  our probate code when a small estate is collected by affidavit. Basic Information about using this form is found on the Colorado State Judicial website, www.courts.state.co.us and searching for the JDF 999 form, with instructions found at JDF 998.

Specifically excluded from application is access by an employer for an asset used by an employee in the course of the employer’s business.

So HB 1189 didn’t become law because it died in committee, but that doesn’t mean that at least some of us estate and elder law attorneys (especially ones like me who prefer to use their own form and not someone else’s) don’t still include provisions regarding digital assets in a durable power of attorney form.  Colorado remains in the majority of states which have no legislation regarding digital assets in the probate law context, but that doesn’t mean we should feel comfortable remaining complacent and not doing anything to plan just because our legislature didn’t pass this important legislation. . . .  There are step we can take to help ensure that a fidicuairy will have access to important fiduciary assets, but without a state statute to that effect, it is much less certain exactly what type of access will be allowed or recognized.

So here’s a bit of a review of why these measures are important to include in a general durable power of attorney and a will or trust:

  1. Identifying and providing an inventory of one’s digital “footprint” will greatly simplify an agent or other fiduciary’s ability to take control of an incapacitated or deceased person’s digital assets in keeping with the stated desires of the person giving the power – like a principal under a POA, the settlor of a trust, or a testator (the maker of a will). This can be done easily by keeping an update listing in a place that is discoverable or known to an agent, for example.
  2. Giving a fiduciary access to important information like usernames, passwords and the like, will greatly simplify the fiduciary’s efforts and ability get access from a service provider or to shut it down. The law in this regard is complicated – it involves user agreements, which often are based on the law of a state where the service provider is headquartered and not in which the user resides, and implicates also the federal law relating to the use of the internet.
  3. When a person gives another, such as a person acting as a fiduciary for that person, the authority to act, there should also be some instructions about what should be done with the particular asset. This will obviously makes the fiduciary’s job much simpler as a job description takes much of the mystery out of such an undertaking.
  4. The person who is the account holder should also expressly authorize service providers to disclose private information to a person’s fiduciary so as to evidence the person’s intent to give access to such information and to provide the authorized access to the information or data as a consequent of such access. This is why some of us, myself included, include specific clause to this effect in a durable power of attorney.

That’s all for now, but I will keep you posted as things continue to develop.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Approaching Grief and Grief’s Consolation

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Piazza Sculpture in Siena

Life, living and being open to change (whether it is desired is another matter) invariably involve grief, because change – inevitable as it is – often involves grief, a recognition of a loss for something or someone beloved or simply familiar.

I find it odd that so many people use fighting terms and war language in reference to a disease or threatening physical condition, as if it were “the enemy” which must be vanquished at any cost.  This is quite contrary to many other cultures’ acceptance of the inevitability of death.

I found instructive some of the teachings from the Samurai code of conduct, known as bushido and as described by the late Japanese writer (and paradoxical figure) Yukio Mishima in the 1977 Basic Books’ translation of “The Way of the Samurai: Hagakure in Modern Life.”  He observes that when a samurai is constantly prepared for death, he has mastered the Way of the Samurai and if a man holds death in his heart, thinking that whenever the time comes he will be ready to die, he cannot possibly take mistaken action.  What Mishima describes is an intimacy with one’s own death that can help train one’s heart and mind to focus on the life that is right now, in the present moment.

I also think of the Native American saying (attributed to many different tribes and bands as well as to the Lakota leader Crazy Horse) “today is a good day to die.”  Its essence reflects the belief that one should never live a moment of one’s life with any regrets, or leave important tasks left undone. This preparation, which is an acknowledgement of our mortality and life’s fragility and uncertainty, means that it would make today as good a day as any to die.  Implicit in the ability to recognize a “good day to die” is the understanding that one can more easily let go when a life is well-lived, because of course the proper focus here is on the quality of life as a continuation of that life in its ending, in death.

How different this approach is from our death anxiety and death denial of the post-modern age.  Mortality and disease are often seen as the “enemies” in the medicalized model which is so prevalent now for health care for our elders.  We simply want more time – but what do we often do with the time once we get it?  We bargain for more.  Longevity becomes as obsession, a form of greed in some respects because that greed for more quantity of life, not quality, separates us from the “how” of our living, leaving only some length of days for which we should be grateful.  Greed for our quantity of life, and for those experiences that we will miss if our life is “cut short” (at whatever age) – this greed is a form of forgetfulness of our mortality.  To the extent we remember, we often feel “out of control” and anxious due to the uncertainty or our demise – both the timing and circumstances.  I have known one woman who planned the meal for after her funeral service including the menu for the caterer.  How many of us could do that?  Mostly I think we follow what is written in so many Tax Court rulings: “taxpayer died unexpectedly.”

Or perhaps it is simply because we have become rather used to thinking of our physical body as something separate from ourselves somehow, as if it were a medical problem to be managed.  This is in many respects the post-modern mechanistic view of North American longevity and life.

And what of the consolation of grief, or better expressed as “from grief” – the recognition that we are never alone in our grief as there is always someone who has, in their own way, experienced an incalculable and unfathomable loss? This is part of our human condition to be sure, but as Heraclitus observed:

Whoever cannot seek

The unforeseen sees nothing,

For the known way

Is an impasse.

Perhaps he is also addressing a similar choice presented by the entry of life via the narrow gate.

What if grief is not something that “happens” to us that is to be “gotten over” but is rather a fundamental aspect of human activity, of be-ing human?  How might this change how we look at our mortality and our inevitable death?  In this respect, grief can be viewed as an invitation to be more fully human.  We, in this dark age of pervasive objective materialism, where mysteries are stripped away – are challenged deeply by this.  We can’t measure the unseen or the mystery or think it through because it is a quality of being.  This is the domain of the heart – a realm that includes the rational but goes well beyond its rather short tether.

Finally, I’ll close with a good clip to watch of a Canadian friend, Judith McGill, who is a “death midwife.” She was recently featured in a CBC- Radio Canada broadcast and you can listen to it or read it here.

©Barbara Cashman  2015   www.DenverElderLaw.org