What is a Putative Spouse (Fam. Code § 297)?

In California, spouses and registered domestic partners are afforded specific legal protections because of their status as a “spouse” or “registered partner.” A putative spouse is different from an actual marriage and a registered domestic partnership but exists to provide the same protections in specific circumstances. The Putative Spouse Doctrine protects Putative Spouses when their marriage or registered domestic partnerships turns out to be invalid. Understanding what a putative spouse is will help ensure your property and interests are protected in the unfortunate circumstance that your marriage or registered domestic partnership is invalid. 

What Is a Putative Spouse?

A putative spouse is an individual who holds a good-faith belief that they are married to their spouse or are registered as domestic partners, when they are not in fact married or registered under California law. The Putative Spouse Doctrine codified in Family Code Section 2251 provides the good-faith spouse the ability to share in the benefits of property obtained during the relationship in a manner equivalent to that of community property. (Miller and Starr California Real Estate (4th Ed.) 4 Cal. Real Est. § 11:36.) 

A ”good-faith” is a subjective belief based on whether an individual in the same or similar circumstances would believe in the validity of their marriage or registered domestic partnership under California law. (Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113.) Because the Good-Faith Belief test is subjective, courts make this determination on a case-by-case basis “…in light of all relevant facts…” because a reasonably good-faith belief may not be considered objectively reasonable. (Miller and Starr California Real Estate (4th Ed.) 4 Cal. Real Est. § 11:36.) If the circumstances arise in a way that both spouses held a good-faith belief in the validity of their marriage or partnership, the court may award them both putative spouse status. (Id.) 

Does the Putative Spouse Doctrine Apply to All Partnerships?

No, the Putative Spouse Doctrine does not apply to all types of partnerships. In California, the Putative Spouse Doctrine applies when a good-faith marriage or registered domestic partnerships is invalid, unbeknownst to one or both spouses. So, if an individual possesses a reasonably good-faith belief in the validity of their marriage or registered domestic partnership only to later discover that their marriage or partnership is invalid, they may be afforded protection under the Putative Spouse Doctrine. California does not recognize unregistered domestic partnerships or common law marriage.

1. Marriage

Marriage is defined as “…a personal relationship arising out of a civil contract between two persons…” who are capable of and have consented to the necessary formation of said contract. (Miller and Star California Real Estate (4th Ed.) 4 Cal. Real Est. § 11:36.) Under the general rules of marriage in California, community property and the presumption of joint ownership of property do not exist in the absence of a valid marriage. (Id.) 

A marriage may be invalid because of variety of issues. One spouse’s bigamy unknown to the other spouse, or performance of the marriage ceremony by an unqualified official are only two of examples of circumstances that invalidate a marriage. If any circumstances invalidating the marriage arise, and at least one spouse previously held a good-faith belief in the validity of their marriage, they can seek protection as putative spouse to claim their interest in community property obtained during the now invalid marriage. 

2. Registered Domestic Partnerships

The Putative Spouse Doctrine additionally applies to registered domestic partnerships. The California Domestic Partner Rights and Responsibilities Act of 2003 defines Registered Domestic Partnerships as “…two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” (Fam. Code., § 297(a).) To establish a registered domestic partnership, both partners must file a Declaration of Domestic Partnership with the California Secretary of State. At the time of filing both partners must meet all the following requirements: 

1. Neither partner may be married to a third-party individual or be a member of a different domestic partnership with a third-party that has not been dissolved, terminated, or adjudged a nullity. 
2. The two applicant partners must not be related by blood in any way that would legally prevent them from marrying each other under California law. 
3. Both applicant partners must be at least 18 years old, unless Section 297.1 involving a valid court order applies. 
4. Both applicant partners must be capable of consenting to the formation of the domestic partnership. (Fam. Code., § 297(b)(1)-(4).) 

Registered Domestic Partnerships are fundamentally different from marriage but are intended to confer the same basic rights and duties. (Id.)  In 2016, the California legislature expanded the definition of the term “spouse” to include “registered domestic partnerships” allowing same sex couples to register as domestic partners. (Id.) As of 2020 the California legislature further amended legislation to allow anyone over the age of 18, regardless of sex, to register as domestic partners. Additionally, California now recognizes any same-sex union established in another state if the union is “substantially equivalent to a domestic partnership” as defined under California law, even if the union is not labeled as a “domestic partnership.” 

If circumstances arise rendering a registered domestic partnership invalid, like those which render a marriage invalid or due to violation of the proscribed requirements, the individual holding a good-faith belief may be awarded putative spouse status. 

3. Unregistered Domestic Partnerships & Common Law Marriage

California does not recognize unregistered domestic partnerships or common law marriage. This means that a relationship is not putative when two individuals live together in a meretricious relationship that meets all the same requirements as a registered domestic partnership, but do not register with the secretary of state or get married. When the relationship is not putative, California Family Code Section 297 does not apply, and the only available remedy for protection of property is by court enforcement of valid express or implied contracts. (Miller and Starr California Real Estate (4th Ed.) 4 Cal. Real Est. § 11:36.)

What Is an Example?

For example, “Shawn” and “Julie” have been together for 10 years and are planning to buy their first house in California together. Before purchasing the house, Shawn proposes to Julie, and shortly after, the two are married. After the marriage, Shawn and Julie buy their first house together and start their married lives together. Four years later Shawn passes away unexpectedly, leaving Julie with the belief that she would inherit the house and all other community property as his now widowed spouse. 

Following Shawn’s death, Julie learns that Shawn was previously in a registered domestic partnership with “Nancy”. Shawn and Nancy registered their domestic partnership 10 years before Shawn met Julie, but after they broke up, Shawn and Nancy never legally terminated, annulled, or dissolved their partnership. Julie held a good faith belief in the validity of her marriage to Shawn because she had no idea about Shawn’s previous registered domestic partnership with Nancy. Accordingly, the court awarded Julie Putative Spouse Status which afforded Julie the same protections as a legally wed spouse would have upon Shawn’s death. Julie is then able to inherit Shawn’s interest in the house and all other community property because she is a putative spouse. 

If Julie had known of Shawn’s previous registered domestic partnership and of his failure to legally terminate it, she would not have held a good-faith belief and subsequently would not have been awarded Putative Spouse Status.

Conclusion

The Underwood Law Firm has a team of experienced lawyers who can help resolve your real property issues as they relate to partition and help you pursue solutions to ensure your property rights are protected. We are here to help.