What the rule says
California recognizes a doctrine called "putative spouse" that protects individuals who believed in good faith they were validly married, even if the marriage turns out to be invalid. The doctrine has its origins in California Family Code § 2251 and is applied in inheritance contexts through California Probate Code § 78.
A putative spouse is a person who:
- Believed in good faith that they were validly married, AND - Was married in fact (in the sense that a marriage ceremony was performed or other steps to enter into marriage were completed), AND - The marriage turns out to be void or voidable for some legal reason
Common scenarios where the doctrine applies:
- Bigamous marriages: One spouse was already married to someone else but the other spouse did not know. - Defective ceremonies: Some procedural defect in the marriage ceremony renders it invalid (the officiant lacked authority, the license was never properly filed, etc.). - Underage marriages without proper consent: A marriage involving a person who lacked legal capacity to consent. - Marriages within prohibited degrees of relationship: A marriage between people more closely related than California allows.
In each of these cases, the marriage may be legally invalid, but if one or both spouses believed in good faith that the marriage was valid, that spouse is treated as a putative spouse.
How putative spouse status affects inheritance
Under California Probate Code § 78, the definition of "surviving spouse" includes a putative spouse who survives the decedent. This means:
- Community property and quasi-community property treatment. Property acquired during the putative marriage is treated as community or quasi-community property, divided as it would be in a valid marriage. - Intestate succession rights. A surviving putative spouse takes the same share of separate property and community property that a legally married surviving spouse would take under California Probate Code §§ 6401–6402. - Omitted spouse protection. If the decedent had a will pre-dating the putative marriage and did not update it, the putative spouse is entitled to the same omitted-spouse protection as a legally married spouse under Cal. Probate Code §§ 21610–21612. - Other rights of a surviving spouse. The putative spouse is treated as a surviving spouse for most purposes under California estate law, including pretermitted-child analysis, family allowance, and other protections.
Limits of the doctrine
The putative spouse doctrine has several important limits:
- Good faith is required. A person who knew the marriage was invalid is not a putative spouse. The good-faith requirement is a real protection for the doctrine — it requires actual subjective belief in the marriage's validity, not just objective ignorance of the defect. - The doctrine applies only after the legal marriage is determined to be invalid. Until a court determines invalidity, the parties are typically treated as legally married. - The doctrine does not cure all marriage defects for all purposes. While putative spouses are treated as surviving spouses for inheritance purposes, certain other legal issues (Social Security, federal tax filing status, etc.) may follow different rules under federal law. - Conflicting claims by legal and putative spouses. If a legal spouse and a putative spouse both have claims against the same estate (for example, a bigamous marriage where the first spouse was unaware of the second), the courts must allocate community property between the marriages. This is one of the most complex applications of the doctrine.
What this means in practice
The putative spouse doctrine applies in narrow but consequential circumstances. It rarely arises in ordinary estate planning but can be transformative when it does apply.
A few practical scenarios:
- A California resident dies, and a person who believed in good faith they were the decedent's spouse claims inheritance rights. The court determines that the marriage was invalid (perhaps because the decedent's prior marriage was never legally dissolved) but that the surviving partner believed in good faith they were married. The surviving partner is treated as a surviving spouse for inheritance. - A California resident dies leaving both a legal spouse from whom they were never properly divorced and a later putative spouse. The court must allocate community property between the two marriages, taking into account the timing and circumstances. - A California resident discovers during life that their marriage was invalid. The doctrine still applies prospectively for inheritance purposes if they continue to believe in good faith, but the parties may also have the option to enter into a valid marriage to remove any uncertainty.
What you can do about it
For California residents who suspect their marriage may be legally defective:
- Investigate the issue. If there is reason to think a prior marriage was not properly dissolved, or that some other defect exists, investigation should occur during life rather than at death. - Consider entering into a new valid marriage. Often the simplest solution to a defective marriage is to fix the underlying problem (e.g., obtain a proper divorce from a prior spouse) and then marry again. This eliminates the doctrine's complexity. - Document good faith if uncertainty persists. If the validity of the marriage cannot be cleanly resolved, contemporary written records — affidavits, statements, and other documentation — can support a putative spouse claim later if needed. - Address inheritance rights through other means. Wills, trusts, and beneficiary designations can provide for a putative spouse independently of the doctrine.
For estate planners advising clients with complex marriage histories:
- Investigate prior marriages and divorces. Confirm that any prior marriages have been properly terminated. - Address the possibility of putative spouse claims in trust documents and other planning instruments.
Who this affects most
The putative spouse doctrine is most relevant for:
- Surviving partners of decedents whose marriages turn out to have been legally invalid - Estate planners and litigators handling complex marriage histories - Individuals who relocated from foreign jurisdictions where marriage formalities differ - Decedents with prior marriages that may not have been properly dissolved - Bigamous-marriage situations where one spouse was unaware of the prior marriage
The doctrine is one of California's most distinctive equitable protections for surviving partners. It rarely applies in ordinary estate planning but can be the difference between full inheritance rights and no inheritance rights when it does.