In re Estate of Yudkin

          Arapahoe County District Court No. 16PR30546 Honorable H. Clay Hurst, Magistrate

          Bell & Pollock, P.C., Bradley P. Pollock, Denver, Colorado, for Appellant

          Law Office of Leonard R. Higdon, Leonard R. Higdon, Greenwood Village, Colorado, for Appellee

          OPINION

          BERGER, JUDGE

         ¶ 1 The decedent, Viacheslav Yudkin, died intestate. Appellant Tatsiana Dareuskaya (putative wife) claimed that she was the common law wife of the decedent and thus entitled to the decedent's property under the law of intestate succession. After an evidentiary hearing, the magistrate, sitting in probate, found that, even though the putative spouses agreed to be married; cohabitated for eight years; and had a reputation in their community as a married couple, no common law marriage existed because they did not file joint tax returns and other indicia of a common law marriage were absent. Because we conclude the magistrate misapplied the controlling law set forth in People v. Lucero, 747 P.2d 660, 663 (Colo. 1987), we reverse his order, direct entry of a decree of common law marriage, and remand for further proceedings.^[1]

         I. Relevant Facts And Procedural History

         ¶ 2 Decedent died on March 25, 2016, without a will. At the time of his death, he, putative wife, and her two children had been living together for eight years. For the five years before his death, they lived in a house in Aurora that was deeded to and titled in decedent's name. Although they maintained separate bank accounts, both decedent and putative wife contributed financially to the household - including mortgage payments on the house.

         ¶ 3 The couple did not jointly own any real property or vehicles, but they purchased a single auto insurance policy that insured both of them. Putative wife was also listed as an insured spouse/domestic partner on decedent's dental insurance plan. They did not file joint federal or state tax returns; putative wife filed as either "head of household" or "single," depending on the year. Neither putative wife nor her minor children took decedent's surname, but decedent introduced the children to others as his own.

         ¶ 4 A few months after his death, decedent's ex-wife, Svetlana Shtutman (who is the mother of his only biological child), sought informal appointment as the personal representative of his estate. No notice of this application was given to putative wife. After Shtutman was appointed as personal representative, putative wife objected, claiming that she was decedent's common law wife and therefore had priority as the personal representative of his estate. The magistrate held a hearing on putative wife's claims.

         ¶ 5 The magistrate heard testimony from fourteen witnesses, twelve of whom testified that they understood that decedent and putative wife were married. Most testified that they did not know the two were not ceremonially married until they were asked to testify at the hearing. The only witnesses who did not testify that the couple were married were Shtutman and decedent's father - who testified that he did not pay attention to his son's relationships.

         ¶ 6 After the hearing, the magistrate made written findings of fact and conclusions of law. He concluded that putative wife had not met her burden to prove a common law marriage under the test set forth in Lucero, 747 P.2d 660. The magistrate found the fact that decedent and putative wife did not jointly file taxes to be the "most convincing" evidence of the fact that they were not common law married.

         ¶ 7 Putative wife appeals, arguing that the magistrate erred in (1) concluding a common law marriage did not exist despite finding that the couple cohabitated and had a reputation in the community as married; (2) failing to find that putative wife had a pecuniary interest in the Aurora property;^[2] and (3) failing to find that decedent wore a wedding ring.^[3]

         II. The Magistrate Misapplied Lucero

         ¶ 8 Whether a common law marriage exists turns on issues of fact and credibility. In re Custody of Nugent, 955 P.2d 584, 588 (Colo.App. 1997). "Accordingly, we review the [magistrate's] factual findings for clear error and [his] common law marriage determination based on those findings for an abuse of discretion." In re Marriage of Hogsett, 2018 COA 176, ¶ 15. "A [magistrate] abuses [his] discretion where [his] ruling is 'manifestly arbitrary, unreasonable, or unfair,' or ...