In re the Estate of Viacheslav Yudkin, deceased.
Svetlana Shtutman, Appellee. Tatsiana Dareuskaya, Appellant,
Arapahoe County District Court No. 16PR30546 Honorable H.
Clay Hurst, Magistrate
& Pollock, P.C., Bradley P. Pollock, Denver, Colorado,
Office of Leonard R. Higdon, Leonard R. Higdon, Greenwood
Village, Colorado, for Appellee
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
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; and (3) failing to find that decedent wore
a wedding ring.
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