Being married is significant both for a married person’s lifetime estate planning and subsequent administration of the estate at death.  Important rights and responsibilities exist between married persons. 

 The capacity (understanding) necessary to be able to marry is low.  It is very difficult to invalidate a marriage afterwards.  In California, “[t]wo unmarried persons 18 years of age or older, who are not otherwise disqualified, are capable of consenting to and consummating marriage [section 301 Family Code].” Even a person who is conserved due to being severely incapacitated can marry unless there a court order says otherwise.  Unfortunately, predatory persons sometimes marry susceptible persons to take advantages of being married.

 Sometimes a person may in good faith believe themselves married when they are not.  A so-called, “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, e.g., bigamy.  

 Once married, each spouse owes the other spouse a, “… duty of the highest good faith and fair dealing … and neither shall take unfair advantage of the other [section 721(b) Family Code].”  Marital earnings are community property and belong equally to both spouses.  Anything acquired while married and living together in California is presumed to be community property.  

Community property assets are generally liable for the debts of either spouse incurred before or during marriage (Family Code sections 900 et. seq.).  It is possible for the earnings of the non-debtor spouse to become answerable for the premarital debts of the debtor spouse.  This is true even if only one spouse is a party to the debt or to the judgment (Family Code section 910(a)).

Two important exceptions exist: First, if a married person puts his or her earnings during marriage (i.e., community property) into a separate bank account that their spouse cannot access then these deposited earnings are not liable for the debtor spouse’s debts incurred prior to marriage; and second, the debts of a deceased spouse’s last illness and funeral are chargeable against the deceased spouse’s own estate, i.e., the deceased spouse’s separate property and one-half of the community property estate.

Conversely, a married person’s own separate property is not answerable for their spouse’s own premarital debts or for any marital debts allocated by court order, either at divorce or at death, to their spouse.

 If a married person dies intestate, i.e., without a will, the surviving spouse is entitled to inherit all of the couple’s community property and either one-third or one-half of the deceased spouse’s own separate property.  Similarly if a married person dies without having updated their estate planning after getting married, the surviving spouse is presumed to be an unintentionally, “omitted spouse” and so is  entitled to an intestate share.

          Moreover, if a probate is commenced, a surviving spouse can petition for a probate homestead to be set-aside for the decedent’s surviving spouse and minor children.  Probates are generally not used by a spouse to inherit from a deceased spouse’s estate.   A so-called “spousal property petition” allows the surviving spouse to claim assets either under the decedent’s will or the laws of intestacy without probate. 

In California, pre and post marital agreements allow couples an opportunity to dictate their property rights and legal obligations to each other once married in some important ways.  Such agreements require separate representation of each party and full disclosure of each party’s assets and income.  Premarital agreements, for example, can be used to confirm one’s property rights in each party’s separate property and prevent the community estate from gaining an interest in either spouse’s own separate property.  It can also address spousal support but cannot address child support. 

In sum, marriage creates rights and responsibilities that have affect during life and at death.  Estate planning is done with these rights and responsibilities in mind.

The foregoing is a brief discussion of a more complex and broader subject.  It is not legal advice.  Anyone confronting such issues should consult with a qualified attorney. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”