Can a Common Law Spouse File a Wrongful Death Claim in Colorado?

Colorado law allows certain individuals to file a wrongful death claim following the death of a person due to the negligent or intentional act of another person or legal entity. Specifically, the Colorado wrongful death statute authorizes a surviving spouse to file a wrongful death lawsuit during the first year following the victim’s death. After the first year, either the surviving spouse or the victim’s children may file a claim. The children may also file in the first year if there is no surviving spouse or if the surviving spouse consents.

Regardless of who initiates the claim, however, proceeds from a wrongful death judgment or settlement must be divided between the surviving spouse and children.

Looking at the “Totality of the Circumstances”

To be clear, only a surviving spouse is entitled to a share of wrongful death proceeds under Colorado law. There is no provision for a surviving unmarried partner such as a boyfriend or girlfriend. However, it is possible for a common law spouse to claim wrongful death proceeds.

Colorado is one of a minority of U.S. states that continues to recognize common law marriages. But proving the existence of such marriages can be complicated. A court must determine whether the parties “mutually intended to enter a marital relationship,” as opposed to simply a long-term partnership. This, in turn, requires a judge to look at the “totality of circumstances” surrounding the relationship.

Recently, our firm represented the surviving children of a woman who died while in the custody of a Colorado sheriff’s office. At the time of her death, the victim lived with a who claimed to be the victim’s common law spouse. On that basis, he and the victim’s children (from a prior relationship) filed a wrongful death lawsuit against the sheriff’s office.

This lawsuit eventually led to a state-court settlement. While the case was pending, however, the alleged common law spouse passed away. Our clients then opened a probate case to determine whether the “boyfriend’s” estate was entitled to a share of the wrongful death settlement funds. The children believed that their mother was not in a common law marriage with the “boyfriend” and therefore his estate was not entitled to such a share.

The “boyfriend’s daughter, representing herself without an attorney, argued that there was a valid common law marriage. A Mesa County district court judge ultimately ruled in favor of our clients, however, and the Colorado Court of Appeals upheld that decision in December 2025.

Basically, the trial court found that the “boyfriend’s daughter failed to produce sufficient evidence proving the existence of a marital relationship. For example, there was no evidence that the couple ever celebrated a specific day as their wedding anniversary, wore wedding rings, or maintained joint bank accounts. That’s not to say there wasn’t some evidence suggesting there may have been a common law marriage, but under a “totality of the circumstances,” the court found there wasn’t enough evidence to support that conclusion.

Contact a Grand Junction Wrongful Death Lawyer

By their very nature, wrongful death cases arise under emotionally difficult circumstances for the surviving family members. Sorting through the legal complexities of these cases can often feel overwhelming. That is why it is beneficial to work with an experienced Grand Junction wrongful death attorney who can guide you through the process with compassion and understanding. Contact Killian, Davis & Richter, P.C., today at 970-241-0707. We serve clients throughout Colorado and Wyoming. We have a long-established practice on Colorado’s Western Slope including Grand Junction, Rifle, Delta and Montrose.

Source:

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