Estate Planning Family Law Legal Topics

You Gotta Believe! But What’s the Legal Standard for Putative Spouses?

What is the test of whether a person is a putative spouse? Is it based on whether the person actually believed in “good faith” that the marriage is valid, or does he or she need to have an “objectively reasonable” belief in the validity of the marriage? The California Supreme Court is set to answer this question in Ceja v Rudolph & Sletten, Inc. (review granted Aug. 10, 2011, S193493; superseded opinion at 194 CA4th 584, 125 CR3d 98).

Putative spouse status comes up when one party to an invalid marriage believes that the marriage is valid, usually because that party doesn’t know that the other party is already married to someone else.

Why does putative spouse status matter so much? As usual, it comes down to money:  Putative spouses are entitled to various benefits of marriage, including division of “quasi-marital property” on dissolution (Fam C §2251) and damages for wrongful death of the other party (CCP §377.60(b)).

Also, cases have construed the term “surviving spouse” to include a surviving “putative spouse” for such purposes as intestate succession statutes (Prob C §§6400–6403) and omitted spouse statutes (Prob C §§21610–21612). See, e.g., Estate of Sax (1989) 214 CA43d 1300, 263 CR 190.

But the courts are currently split on whether a party who knows a marriage is invalid can obtain a division of quasi-marital property over the objection of a party who believed the marriage was valid. In Marriage of Tejeda (2009) 179 CA4th 973, 102 CR3d 361, the court answered this question in the affirmative, but in Marriage of Guo & Sun (2010) 186 CA4th 1491, 112 CR3d 906, the court concluded that Tejeda was wrongly decided.

The supreme court may soon decide what it means to believe in good faith that your marriage is valid — is it an actual “good faith” belief or an objectively reasonable one?

The supreme court’s determination may even reach registered domestic partners, i.e., the putative spouse doctrine also may apply to putative registered domestic partners who meet the standard for putative spouse status, even if the domestic partnership was not properly registered. Domestic Partnership of Ellis & Arriaga (2008) 162 CA4th 1000, 76 CR3d 401.

 For discussion of the putative spouse issue and its implications, go to CEB’s Practice Under the California Family Code §3.19. Also check out CEB’s California Estate Planning §4.1B.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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