California’s “putative spouse doctrine” treats a so-called “putative spouse” like a surviving spouse with legal standing to sue for wrongful death of a deceased spouse and to claim a surviving spouse’s inheritance rights.
A putative spouse is someone who is found by a court to have genuinely believed that he or she was legitimately married although the marriage was invalid, void or voidable due to some legal defect affecting the union (for example bigamy).
Now, surviving domestic partners in a defective partnership may similarly argue that the “Putative Spouse Doctrine” applies to them, although that is not uniformly agreed throughout California.
The doctrine is all about fairness to innocent parties. It allows a court to find a union where otherwise strictly applying the law would result in an injustice. It requires the persons claiming to be married to have held a good faith belief in the invalid, void or voidable marriage.
Courts have examined numerous factors when deciding whether or not a person in good faith believed they were married.
Factors include the person’s level of education, cultural background and lifestyle. It is a facts and circumstances case by case analysis.
California judicial case law, however, is divided over whether the belief needs to be objectively reasonable or merely subjectively held.
Does a putative spouse’s erroneous belief that he or she was married need to be reasonable given the circumstances? Or is an alleged state of mind, no matter how implausible, sufficient?
California’s Supreme Court will decide this legal issue in the pending case of Ceja v. Rudolph & Sletten Inc., on appeal.
A putative spouse (or partner) has the same rights as a surviving spouse if the other spouse (or partner) is deceased.
In particular, if the deceased putative spouse died with assets not transferrable under a valid will or trust then the surviving putative spouse is entitled to receive all those assets that were acquired during the union which otherwise would have been the couple’s community property assets if their union had been valid (so-called “quasi marital property”). He or she is also entitled to either one-half or one-third of the decedent’s separate property assets.
Recently California’s Superior Court in Burnham v. Public Employees’ Retirement System [(2012) 208 CA4th 1576] ruled against a surviving domestic partner where the couple’s declaration of domestic partnership was signed only hours prior to one partner’s death, and then filed the California Secretary two days later.
The court found the partnership invalid because the declaration had to be filed while the partners were both alive for the union to be finalized.
The court held that the putative spouse doctrine inapplicable because it only applied to protect a putative spouse’s expectancy in the future assets that the couple acquired while living together like a married couple.
Given that the couple’s declaration was signed only hours prior to one partner’s death the doctrine was inapplicable.
Nonetheless, the court’s decision does not explain why the putative spouse doctrine was inapplicable insofar as the surviving partner should have been awarded the rights of an “omitted spouse” (that is a spouse who was married but not included in any will either because no will was executed or the decedent’s will was executed prior to the marriage).
As a putative spouse, the surviving partner would been entitled to one-third of the deceased partner’s retirement plan.
The putative spouse doctrine obviously is not an estate planning tool. It is a fall-back position that from time to time protects a surviving “spouse” or “partner” who thought he or she was in a legally recognized union.
Otherwise, the only recourse of the aggrieved surviving “spouse” or “partner” is to sue as a creditor of the decedent’s estate regarding any contractual obligations that were created by cohabiting but unmarried persons.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .