CALIFORNIA PUTATIVE SPOUSE AND DISTRIBUTION OF ESTATE ASSETS

William Sweeney

CALIFORNIA PUTATIVE SPOUSE AND DISTRIBUTION OF ESTATE ASSETS

Putative Spouse

1. Most California putative marriages arise when the parties fail to comply with the statutory requirements for marriage. See Cal Fam C §§300, 306 (formalities include that the marriage be licensed, solemnized, and authenticated and that a certificate be filed).

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

Formalities include that the marriage be licensed, solemnized, and authenticated and that a certificate be filed. If Husband and Wife fail to comply with the statutory requirements for marriage the surviving Husband or Wife may be deemed a "putative spouse."

2. Husband and Wife 1 were legally married and believe they are legally divorced thereafter.

Husband then enters into a second "marriage" with Wife 2 but since the divorce from Wife I is invalid, Husband cannot be legally married to Wife 2. Wife 1 is a legal spouse and Wife 2 is a "putative spouse."

Wife 2 may be unaware that a previous marriage to Wife 1 was not properly dissolved, and thus the "marriage" between the parties is void. Because the second marriage is void the Wife 2 may be deemed a "putative spouse."

3. A Bigamist is married to two people at the same time. The second marriage is illegal and considered void. (Cal Fam. Code, § 2201.).

However, if your spouse is absent for more than five years and you believe him/her dead, then marrying again is not considered bigamy. (Cal Fam. Code, § 2201). The first person married is legal and the second person married is a putative spouse.

Cal Fam. Code, § 2201 provides:

A subsequent marriage contracted by a person during the life of his or her former spouse, with a person other than the former spouse, is illegal and void, unless:

(1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.

(2) The former spouse (A) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (B) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.

California Courts Have Historically Permitted Putative Spouses an Intestate Share of the Decedent Spouse's Estate.

If the survivor of the relationship believed that he or she was married to the decedent, under certain limited circumstances, the survivor can claim rights under the decedent's estate as a " putative" spouse. Estate of Leslie (1984) 37 C3d 186, 197. The principal issue presented by Estate of Leslie was whether a putative spouse is entitled to succeed to a share of his or her decedent's separate property.

In addition to rights to separate property, other cases show that rights of a putative spouse also extend to the spousal interest in the decedent's community property (Estate of Krone (1948) 83 CA2d 766) and the spousal interest as a pretermitted heir (Estate of Sax (1989) 214 CA3d 1300).

Estate of Sax, in accord with Estate of Leslie, supra, holds that a surviving putative spouse can claim omitted spouse status under what is now Cal Prob C §21610 even though that statute does not explicitly refer to putative spouses. Cal Prob C §21610 provides for a pretermitted heir as follows:

"21610. Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments, the omitted spouse shall receive a share in the decedent's estate, consisting of the following property in said estate:
(a) The one-half of the community property that belongs to the decedent under Section 100.
(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.
(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate."

Other Examples of Putative Spouse Situations That Have Been Subjects of Litigation:

1. A "widow" of a bigamist who led a double life for 24 years before dying in a car accident was determined to be the putative spouse. Estate of Vargas (1974) 36 CA3d 714.

2. A trial court found that a woman's reasonable and good faith belief that her Mexican marriage was valid was sufficient to make her a putative spouse, even though no records existed of the marriage, the man's divorce was not yet final, and the woman had married another man 3 weeks earlier in Orange County but claimed the marriage had been annulled, although she could not identify any Orange County records to support the supposed annulment. Estate of Goldberg (1962) 203 CA2d 402.

3. A woman who claimed to have been married in a private ceremony in her apartment under tenets of her Moslem sect but failed to cohabit, inform the family of her "marriage," or commingle assets could not be considered a putative spouse. Marriage of Vryonis (1988) 202 CA3d 712.

4. A woman faxed a notice from the court to decedent's employer claiming to be a putative spouse of the decedent. The notice, dated after her marriage to decedent, informed "husband" (in bold print) that he could not remarry prior to the entry of judgment of dissolution of his existing marriage. The woman could be a putative spouse if she is found to have a good faith belief that she and decedent were married. Ceja v Rudolph & Sletten, Inc. (2013) 56 C4th 1113. The court held that the "good faith inquiry is a subjective one that focuses on the actual state of mind of the putative spouse." Ceja, supra, 1128. In determining whether a party had a subjective good faith belief in the validity of the marriage, the court considers all relevant circumstances, including the reasonableness of a party's belief. Ceja, supra, 1126.

5. On the standing of a Mexican concubine to bring a wrongful death suit in California, see Rosales v Battle (2003) 113 CA4th 1178 (wrongful death statute did not confer standing on decedent's Mexican concubine because concubinage under Mexican law is not equivalent of common law or other marriage; status of concubine as intestate heir under Mexican law does not convey standing as intestate heir entitled to bring wrongful death actions under California law).

How Assets are Distributed Among the Putative Spouse and the Legal Spouse.

Court of appeal cases prior to Leslie had to wrestle with a more complex question: how to be equitable when the competing claims are between a surviving legal spouse and a surviving putative spouse.

In Estate of Vargas, supra, for example, the deceased husband had maintained two wives and families without either of the wives knowing about the other one. Because the valid marital relationship and the putative marital relationship occurred during the same period of time, the court of appeal agreed with the trial court's ruling that the deceased husband's estate should be split equally between the two "wives." See also Estate of Ricci (1962) 201 CA2d 146 (similar holding).

On the other hand, there are several earlier decisions in which the marriages were seriatim and in those cases the courts of appeal ruled that the surviving putative spouse was entitled to an intestate share of 100 percent of the community property and a spousal share of the separate property. Mazzenga v Rosso (1948) 87 CA2d 790; Estate of Krone, supra.

Two more recent cases demonstrate the ongoing conflict. Estate of Hafner (1986) 184 CA3d 1371. held that the surviving putative spouse was not entitled to a spousal intestate share but instead had to share the decedent's estate with the legal spouse. That court also ruled that the surviving putative spouse was not entitled to the family allowance authorized under the Probate Code for surviving spouses because she was not in fact a surviving legal spouse, only a surviving putative spouse. The court noted that the legislature knew how to include putative spouses in a statute and did not choose to do so in this one. This holding seems questionable in light of Estate of Leslie, supra, which seems to stand for the proposition that, as to survival rights, the putative spouse should be given the rights of a legal spouse.

Proceedings under Prob C §11700 have even been used to determine the respective rights of the legal spouse and the putative spouse of a bigamist, holding that the legal spouse and the putative spouse should each succeed to one half of the decedent's estate. Estate of Hafner, supra.

California Putative Spouse

A court can declare a party to have putative spouse status if the court finds that the party believed in good faith that a void or voidable marriage was valid. If the court finds that a marriage is void or voidable and that either party or both parties believed in good faith that the marriage was valid, the court must declare the party or parties to have the status of a putative spouse. Cal Fam C §2251(a)(1); Estate of Hafner, supra.

Only a spouse who held a good faith belief that the marriage was valid will be afforded the protection of a putative spouse, including the standing to request a division of property that would have been community property or quasi-community property if the union had not been void or voidable. The current Cal Fam C §2251 supersedes case law holding that a good faith belief of either party was sufficient under a prior version of the statute. Putative spouse status is a critical determination because a surviving spouse may be entitled to an intestate share of a testator's estate as an omitted spouse if the will fails to provide for that person.

In Ceja, supra, the California Supreme Court resolved a split among the appellate courts on the question of whether the putative spouse must have an objectively reasonable belief in the validity of the marriage under CCP §377.60(b) in favor of a subjective standard. The court summarized the test to be applied as follows (Ceja, supra, 1128):

The good faith inquiry is a subjective one that focuses on the actual state of mind of the alleged putative spouse. While there is no requirement that the claimed belief be objectively reasonable, good faith is a relative quality and depends on all the relevant circumstances, including objective circumstances. In determining good faith, the trial court must consider the totality of the circumstances, including the efforts made to create a valid marriage, the alleged putative spouse's personal background and experience, and all the circumstances surrounding the marriage. Although the claimed belief need not pass a reasonable person test, the reasonableness or unreasonableness of one's belief in the face of objective circumstances pointing to a marriage's invalidity is a factor properly considered as part of the totality of the circumstances in determining whether the belief was genuinely and honestly held.

A good faith belief in the validity of a registered domestic partnership is similarly entitled to protection as a putative registered domestic partner, even if the partnership was not properly registered. In re Domestic Partnership of Ellis & Arriaga (2008) 162 CA4th 1000, disapproved on other grounds in Ceja, supra, (putative registered domestic partner).

However, in Burnham v. Public Employees' Retirement Sys (2012) 208 CA4th 1576 the court held that the putative spouse doctrine did not apply to survivor benefits of a public employee, whose declaration of domestic partnership was executed but not filed with the Secretary of State until shortly after his death, because the surviving partner did not accumulate assets with the decedent that would have been community property, despite the surviving partner's good faith belief in the validity of the partnership.

Note that the rules for setting aside the provisions of the will to give an intestate share of the testator's estate to an omitted spouse are less inclusive than the rules for automatic revocation of provisions in favor of a former spouse. A spouse who has obtained a judgment of legal separation is not a surviving spouse for intestate succession purposes even if the spouse is still married to the testator. Estate of Lahey (1999) 76 CA4th 1056. See also Estate of McDaniel (2008) 161 CA4th 458 (person who "was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights" was not a surviving spouse for intestate succession purposes). But see Estate of Garrett (2008) 159 CA4th 831 (nominee of decedent's spouse was entitled to letters of administration even though decedent and spouse permanently separated and spouse filed action for divorce that was dismissed for lack of prosecution).

Summary

California has two specific statutory provisions (CCP §377.60 and Fam C §2251) that apply to putative spouses. However, neither provides any rules that apply to the intestacy rights of a surviving putative spouse.

However, under case law, the term "surviving spouse" has been construed to include a surviving "putative spouse" for such purposes as intestate succession statutes (now Cal Prob C §§6400-6403) and omitted spouse statutes (now Prob C §§21610-21612). Estate of Leslie, supra, 207; Estate of Sax, supra. However, those decisions do not limit the application of the putative spouse doctrine to just community property.

In Burnham, supra, the survivor benefits do not appear to be community property because they were earned before the period of the putative partnership, which only lasted a few hours. However, an omitted spouse also is entitled to a surviving spouse's intestate succession share of the deceased spouse's separate property, which in Burnham, supra would include one-third of the survivor benefits under Prob C §6401(c)(3), i.e., the survivor's share of separate property when a decedent has two or more surviving children. The court correctly notes that the putative spouse doctrine also applies when both spouses believe in the validity of the marriage, as occurred in Estate of Leslie, supra, and allegedly occurred in Burnham, supra.

Although it is possible to distinguish Estate of Sax, supra, because the assets described in the spousal property petition in that case were stipulated to be community or quasi-community property, the supreme court held that the surviving putative spouse in Estate of Leslie, supra, was entitled to an intestate share of the decedent's separate property as well as quasi-marital property.

A putative spouse has intestate succession rights to the same extent as a surviving spouse. See Estate of Krone, supra, (decided under former Prob C §201, predecessor to Cal Prob C §6401). In addition, an ownership claim in property may be asserted by the putative spouse in the same manner as would be asserted by a spouse-that is, under Cal Prob C §850 (i.e. "Heggstad Petition" to determine title to an asset), Cal Prob C §13650 (spousal property petition; see Estate of Sax, supra, or Cal Prob C §11700 (petition to determine entitlement to inherit from estate; see Estate of Hafner, supra (decided under former Prob C §1080)).

Generally, the intestate inheritance rights of a surviving putative spouse have been developed by judicial decisions that attempt to resolve disputes equitably. To be deemed a California putative spouse one spouse must have had a good faith belief that the marriage was legally valid. The "good faith belief" required refers to an alleged putative spouse's subjective state of mind, and is not based on a "reasonable person" standard. However, the reasonableness or unreasonableness of a party's belief in the face of objective circumstances pointing to a marriage's invalidity is a factor properly considered as part of the totality of the circumstances in determining whether the belief was genuinely and honestly held.

The test for a California putative spouse is: The good faith inquiry is a subjective one that focuses on the actual state of mind of the alleged putative spouse. While there is no requirement that the claimed belief be objectively reasonable, good faith is a relative quality and depends on all the relevant circumstances, including objective circumstances. In determining good faith, the trial court must consider the totality of the circumstances, including the efforts made to create a valid marriage, the alleged putative spouse's personal background and experience, and all the circumstances surrounding the marriage.

Although the claimed belief need not pass a reasonable person test, the reasonableness or unreasonableness of one's belief in the face of objective circumstances pointing to a marriage's invalidity is a factor properly considered as part of the totality of the circumstances in determining whether the belief was genuinely and honestly held.

Property Division

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.

A California putative spouse also has intestate succession rights to the same extent as a surviving spouse and can claim ownership in property in the same manner as would be asserted by a spouse.

However, a California putative spouse is not entitled to a family allowance. In addition, if the decedent is survived both by a surviving spouse and a putative spouse, the application of equitable principles may result in the putative spouse's only being entitled to his or her one-half of the quasi-marital property, leaving the decedent's one-half to pass by will or intestate succession.

Under appropriate circumstances, the California putative spouse may be able to successfully assert that the surviving spouse is estopped from challenging the validity of the putative spouse's marriage to the decedent.

Domestic Partnership

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. 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.

Quasi-Marital

Quasi-marital property is property acquired by parties to an invalid marriage that would have been community or quasi-community property had the marriage been valid, as long as either party qualifies as a putative spouse. Either party to an invalid marriage who had a good faith belief in the validity of the marriage may be treated as a "California putative spouse" and claim an interest in the property acquired during marriage that would have been characterized as community property if the marriage had been valid.

The courts are split on whether a party who claims California putative spouse status may do so on the basis that it was the other party only who held a good faith belief in the validity of the marriage. If a California putative spouse claim is upheld, the property acquired during the invalid marriage is considered "quasi-marital" property and is treated like community property in an annulment or estate proceeding. By extension, these quasi-marital-property principles should also apply to "putative domestic partners.

CONCLUSION

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