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 person(s)
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

            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.

“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.”