Death Benefits

The claimant married the decedent in 1999 and the couple had one child. The decedent sustained compensable fatal injuries on August 7, 2005, when he was involved in a motor vehicle accident. The claimant was awarded death benefits as the surviving widow and benefits were paid going forward.

The facts at hearing showed that on October 12, 2009, the claimant had a second child, and the father of the child moved into a home the claimant had purchased in 2006. The claimant is the sole owner and the sole person listed on the home’s mortgage. The father of the child, and both of claimant’s children live at the home, and the father pays the claimant $300 per month for rent. The claimant and father of the child do not have joint bank accounts or credit cards, and do not hold themselves out to be spouses.  They own separate vehicles, and while the vehicles are on a joint policy, both the claimant and father listed themselves as “single” on the policy.  When on vacation with other relatives, claimant and the father paid for themselves and each’s biological child separately.  Both also testified they are “boyfriend and girlfriend” and not “husband and wife.”

The ALJ determined a common law marriage did not exist because neither the claimant nor the father indicated any intent to be married nor have they held themselves out to be married. The ALJ, therefore, denied the respondents’ request to terminate the claimant’s death benefits due to remarriage.

On appeal the respondents contended that the ALJ erred in crediting the claimant’s testimony and that the overwhelming evidence established a common law marriage.

A common law marriage is established by mutual consent or agreement of the parties, followed by mutual and open assumption of the marital relationship. People v. Lucero, 747 P.2d 660 (Colo. 1987). The facts giving rise to a common law marriage can be varied, and as such, determining whether one exists is a question of fact. Because it is a question of fact, the Panel must uphold the ALJ’s determination if supported by substantial evidence in the record.

A panel of the Industrial Claims Appeals Office (“Panel”) determined the record contained ample evidence that the claimant and the father not common law married. Although the two cohabitated, they did not hold themselves out as married. The ALJ credited the testimony of the claimant and the father combined with the lack of evidence to establish that the parties held themselves out to be common law married, which the Panel concluded was sufficient. Therefore, the claimant’s death benefits remained undisturbed.

Ortega v. Blue Star Holding Co., W.C. No. 4-661-263-02 (ICAO Apr. 17, 2018).

Would you like to know more? Contact Jake Johnson at or 720-488-9586.


From the May 2018 Pollart Miller Newsletter