Finding out that your marriage may not have been legally valid, especially after losing your partner, can be frightening. You may be worried that you have no claim to the home, savings, or other property you built together.
The good news is that California law has protections for this situation.
Even if your marriage turns out not to have been legally valid, you may still qualify as a “putative spouse”, and that status can preserve your right to a share of your deceased partner’s estate.
What Is a Putative Spouse?
A “putative spouse” believes himself or herself to be married in good faith and is given legal rights as a result of this person’s reliance upon this good-faith belief.
Unlike someone in a common-law, statutory, or ceremonial marriage, a putative spouse is not legally married in that there is failure to comply with the statutory requirements for marriage because the marriage failed to meet California’s legal formalities: being licensed, solemnized, authenticated, and filed as a certificate.
For example, a husband and his wife are legally married and later believe they’ve gotten divorced. But the divorce was never actually finalized, so they’re still legally married. Believing he’s free to remarry, the husband marries another woman. Because his divorce from his first wife was never valid, he can’t legally be married to his second wife too. His first wife remains his legal spouse, and his second wife becomes his putative spouse.
California Courts Have Historically Permitted Putative Spouses an Intestate Share of the Decedent Spouse’s Estate
Putative spouses have several established paths to a share of the decedent’s estate:
- Quasi-marital property: Courts have long allowed a putative spouse to share in the decedent’s community-like property.
- Separate property: In Estate of Leslie (1984) 37 Cal.3d 186, the California Supreme Court held that a putative spouse could also inherit a share of the decedent’s separate property when the decedent died without a will.
- Omitted spouse status: Other cases have extended similar protection when someone marries after signing a will that was never updated. Under Probate Code section 21610, that generally means half the community property, half the quasi-community property, and up to half the decedent’s separate property.
Not every claimed relationship qualifies, though. In one 1988 case, In re Marriage of Vryonis, a woman said she’d married her partner in a private ceremony in her apartment, but she never lived with him, never told his family, and never combined finances with him.
The court at the time ruled that a reasonable person wouldn’t have believed that was a real marriage, so she didn’t qualify.
Courts no longer use that “reasonable person” standard today, but even under today’s rule, a court would still look closely at facts like these when deciding whether someone’s belief was genuine.
How Assets are Distributed Among the Putative Spouse and the Legal Spouse.
When a decedent leaves behind both a legal spouse and a putative spouse, California courts generally apply one of two rules, depending on timing:
- If the two relationships overlapped in time (the decedent was legally married to one person while also in a good-faith putative marriage with another), courts have tended to split the estate evenly between both spouses. In Estate of Hafner (1986) 184 Cal.App.3d 1371, an appeals court split a bigamist’s estate evenly between his legal wife and his putative spouse.
- If the relationships happened one after another (not overlapping), the surviving putative spouse has, in some cases, been awarded a full share of the community property, with the legal spouse and putative spouse then sharing the separate property.
In that same Hafner case, the surviving putative spouse was not entitled to a spousal intestate share or to the family allowance the Probate Code reserves for a legal spouse. She instead had to share the estate with the legal spouse. The court held that each spouse should receive one half of the estate.
What Counts as Good Faith in a Putative Marriage?
The California Supreme Court settled this question in Ceja v. Rudolph & Sletten (2013): good faith is judged by what the person actually believed, not by what a “reasonable person” would have believed. Courts still look at all the surrounding circumstances, including how reasonable the belief was, but the core question is the person’s genuine, honest state of mind.
What Are a Putative Spouse’s Inheritance Rights?
California has specific laws that apply to putative spouses. However, none of them spell out how intestacy works for a surviving putative spouse.
Court decisions have expanded the meaning of ‘surviving spouse’ to include a putative spouse for these purposes. And those rulings don’t limit a putative spouse’s rights to community property alone. Separate property can be included too.
A putative spouse has the same inheritance rights as a legal spouse when there’s no will. They can also go to court to claim a specific piece of property, for example, through a Heggstad petition, a spousal property petition, or a petition asking the court to decide who inherits.
Because the law doesn’t spell out exactly how these cases should turn out, judges have built these rules case by case, aiming for a fair result for everyone involved.
How Property Gets Split
If division of property is in issue, a California court will designate property that would otherwise have been the spouses’ community or quasi-community property as “quasi-marital property” and will divide the property as if the union had not been void or voidable, that is, according to the rules applicable to division of property in a dissolution proceeding.
However, a California putative spouse is not entitled to a family allowance. And if the decedent leaves behind both a legal spouse and a putative spouse, a judge may decide the putative spouse only gets their half of the quasi-marital property, with the decedent’s half going to the legal spouse through the will or through intestate succession.
In some cases, the legal spouse may lose the right to challenge whether the putative spouse’s marriage was valid at all, for example, if they waited too long or it wouldn’t be fair to allow the challenge now.
Does This Apply to Domestic Partners?
A person with a good faith belief in the validity of his or her registered domestic partnership is entitled to protection as a California putative registered domestic partner, even if the domestic partnership was not properly registered.
Courts look at what the person actually and honestly believed, not just what a “reasonable” person might have believed. The same good-faith standard used for putative spouses.
However, even though domestic partners are generally afforded the same property rights as spouses, there is conflicting authority as to whether domestic partners who fail to properly register can be considered putative spouses.
What Is ‘Quasi-Marital Property’?
Quasi-marital property is the name for property acquired during an invalid marriage once a putative spouse claim is upheld. It’s treated the same way community property would be in an annulment or estate proceeding.
Either spouse, whichever one actually, honestly believed the marriage was valid, can be recognized as a putative spouse and claim a share of that property. That said, good faith has to be personal: under current law, you cannot get putative spouse status just because the other person believed the marriage was valid, if you did not.
The legislature settled this in 2016.
Where Putative Spouse Estate Disputes Are Heard in Orange County
Estate disputes that raise a putative spouse question in Orange County are heard by the Orange County Superior Court Probate Division. Probate filings and hearings currently take place at the Costa Mesa Justice Complex, 3390 Harbor Boulevard, Costa Mesa, CA 92626. Because putative spouse status turns on the specific facts of each relationship, a probate judge will weigh the circumstances of the marriage before ruling on an estate share.
Frequently Asked Questions
Q: Can a putative spouse inherit if there is no will?
A: Yes. California courts treat a putative spouse as a “surviving spouse” for intestate succession, so they can inherit under California’s intestate succession laws the same way a legal spouse would.
Q: What happens if a decedent had both a legal spouse and a putative spouse?
A: Courts divide the estate based on the facts of each case. Past rulings range from an even 50-50 split to giving the putative spouse a full share of the community property, depending on whether the two relationships overlapped or happened one after the other.
Q: Does a putative spouse get a family allowance during probate?
A: No. Case law holds that a putative spouse is not entitled to the family allowance that the Probate Code reserves for a legal surviving spouse.
Q: How do I ask a probate court to rule on putative spouse status?
A: A putative spouse can raise the issue through a spousal property petition, a Heggstad petition, or a petition asking the court to decide who inherits, depending on the estate.
Q: Do I need a lawyer to claim putative spouse rights in a probate case?
A: These cases turn on detailed facts and competing case law, so most people benefit from an experienced probate attorney’s help before filing a petition.
Let’s Talk About Where Things Stand
Because so much of a putative spouse claim comes down to the specific facts of your relationship, having quality legal representation matters.
At Quinn & Dworakowski, LLP, we’re prepared to guide you through every stage of this process.
Contact us today about your estate matter.
To schedule a consultation, contact Quinn & Dworakowski, LLP today.
Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by Quinn & Dworakowski, LLP, and a written agreement containing all terms of representation has been signed.
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