Posts tagged marriage
What if you die right after finding out that your spouse made a gift of community property without your consent?

Sometimes people discover legal claims they have against others, but don't live long enough to enforce them. In the context of gifts of community property made without consent, it's possible that your claim would outlive you, such that a personal representative of your estate may enforce those rights.

Going back to first principals, keep in mind that each spouse has an interest in community property, and each spouse has the right to transfer 1/2 of the community property upon his or her death.

Therefore, if your spouse made a gift of community property without your consent, then you or the personal representative of your estate (if you passed away), may attempt to void the gift.

The law only allows the non-consenting spouse (or his or her personal representative) to seek legal action to set aside the gift. In other words, the gifting party can't benefit from this rule, and is bound by the actions he or she took in making the gift. As to his or her interest, the gift is valid.


What is a "putative spouse" and how might that affect your estate plan?

A putative spouse is someone who you have a good faith belief that you are married to, but where the marriage is not legally valid.

Let's say for example, you go through the process of becoming married but for some reason your marriage certificate was never filed. Technically, the marriage is not legally valid, but you and your spouse thought that the marriage was valid. This is a situation where your spouse would be a putative spouse. Or, let's say for example, that you thought your prior divorce was complete (but it wasn't), and you later were legally married to someone else. Then your new marriage is not legally valid, and your new spouse is a "putative spouse".

The rights of a putative spouse can be tricky to determine. Ideally, if you find yourself in this situation, it should be dealt with before the death of either spouse. If there was a prior divorce that was not properly dissolved, it should be done so immediately. And, if your current marriage was defective because of some technicality, steps should be taken to make sure the marriage formalities are followed. Of course, this is often easier said than done, because oftentimes problems of this type never come to the forefront until after one of the spouses dies and someone from the past comes out of the woodwork.

Some court decisions have held that a "putative spouse" should be given the same rights as a legal spouse. Thus for example, he or she would be entitled to whatever a legal spouse would've been entitled to of your estate. However, other courts have taken a different approach when there was the presence of a surviving legal spouse, as well as a surviving putative spouse.

As a result, if you are in the process of getting married, be sure you get the proper documentation, including a validly filed marriage certificate, or if you're getting a divorce, make sure to obtain a final divorce decree from the court signed by the judge, so that there's no doubt in the future.

What challenges do same-sex couples face in estate planning?

Today, same-sex marriages are legal in the US. This made uniform the tax and planning aspects for all married couples, whether same- or opposite-sex. It also brought about fairness in certain tax benefits that were previously only available for opposite-sex couples.

Registered Domestic Partnership

In contrast, Registered Domestic Partners are not considered spouses under federal law. Therefore, it's important to remember that many of the federal tax benefits afforded to married, same-sex couples are not available to Registered Domestic Partners.

In California, however, Registered Domestic Partners have the same rights and responsibilities as married couples, resulting in some very unique estate planning issues for couples who choose to be in Registered Domestic Partnerships.

Subsequent Marriages

The ease with which individuals may enter into Registered Domestic Partnerships can causes issues when they seek to later marry someone else.

Registered Domestic Partners who separate without taking any of the proper legal steps to dissolve the registered domestic partnership are not legally able to marry someone else. As a result, people who believe they are validly married to their new partner, may not actually be in a legal marriage because they failed to have a prior registered domestic partnership dissolved.

How does divorce affect my estate plan?

Divorce and re-marriage can have a significant affect on the estate plan you have in place.

First and foremost, in California, an "Automatic Temporary Restraining Order" is in effect during the marriage dissolution process. This generally hinders your ability to do estate planning as the law wants to avoid changes in your financial position during the pending divorce. 

Beneficiary Designations

If you designated your ex-spouse as a beneficiary of an asset with a beneficiary designation, for example, your retirement account, this designation is automatically revoked as a result of your divorce.

It's important to remember, however, that the divorce does not revoke the designation of your ex-spouse as the beneficiary of life insurance policies. It's therefore important to take stock of all of your assets and ensure that all beneficiary designation forms are properly updated during the estate planning process.


If you created an estate plan while you were single and then got married, your estate planning documents may be overridden at the time of your death, if your spouse survives you.

Your surviving spouse is entitled to the "statutory share" of your probate or trust estate. More details will be provided in another post; however, just note that if you have an existing estate plan and you get married, you must take steps to ensure that your estate plan will still be enforced despite your marriage. Most often, this can be a statement in your estate planning documents which states that you intend for your estate plan to be effective even though you recently were married.

Marriage brings with it many joys, but divorce is a precipitating event that forces many people to revisit the estate planning process. If you're going through a divorce, are contemplating divorce, or have completed a divorce, it's important to see what impact it may have on your estate plan.