By Angela C. Thompson
Frequently, our office receives a call from a prospective client who was the “life partner” or “long-term companion” of a decedent. Essentially, this is a person who has spent years, even decades, in a committed relationship with someone who has now passed away. These clients are often surprised and disappointed to learn that, despite the genuine love and commitment that existed between themselves and their partners, probate law does not afford them any of the protections available to spouses or registered domestic partners.
Despite California’s reputation for progressive thinking, some if its laws still closely mirror the century-old principles of the English common law. The California Probate Code is perhaps one of the more striking examples of this phenomenon.
In California, a spouse has a right to inherit all of their partner’s community property and a substantial portion of their separate property upon their partner’s death (the percentage varies depending on whether the deceased partner had children, and if so, how many). A spouse also has priority over all others when being considered for appointment as the administrator of the deceased partner’s estate. A spouse may bring a spousal property petition, qualify for a spousal probate homestead, or have a right to a family allowance. And a spouse may claim to have been “pretermitted” (or inadvertently omitted) from a decedent’s estate plan.
In stark contrast, a long-term cohabitant has none of these rights or privileges. Thus, we often find ourselves across the table from these potential clients as reluctant bearers of bad news: absent a will or some other affirmative action on the part of the decedent, the long-term companion is simply out of luck. The deceased person’s estate will pass, pursuant to the laws of intestate succession, to his or her children, or if there are no children, to the decedent’s parents or siblings. The long-term companion will be excluded entirely.
Let’s talk about a couple of real-life scenarios (names changed to protect identities):
Mary came into our office about a year ago, a lovely soft-spoken lady in her 70s with thick glasses and curly silver hair. She twisted the handles of her large purse in her hands as she informed us that Paul, her partner of more than 30 years, had recently died. They had never married and had always kept separate bank accounts, but they shared a home that was in Paul’s name alone. The home had an outstanding mortgage, with Paul as the sole borrower, but they each contributed to the mortgage payments.
Unfortunately, when Paul passed away, his family members quickly descended on his home and removed a number of items of valuable personal property, including vehicles and equipment. They reasoned that Mary had no right to any of these things because she and Paul had never married. Normally, they would be right. However, Paul had the forethought to create a will, in which he named Mary as his executor and left everything to her. Mary is now appointed as the executor of Paul’s estate and his family members have abandoned their attempts to take Paul’s property away from her.
By contrast, another matter had a less favorable outcome. Trudy, a professional and sophisticated woman in her early fifties, had been cohabiting with Jeremy, a retired professor, for approximately eight years. Jeremy was more than a decade older than Trudy, and died suddenly and unexpectedly of a heart attack. Although the couple had consistently referred to each other as “husband” and “wife” during their relationship, they had never formally married. Their home was Jeremy’s before they began living together, and was always held in his name alone. As soon as Jeremy died, his adult children instructed Trudy to vacate the house immediately.
Trudy did some research before she contacted our office, and came to us with the following theory: She believed she should be protected under the Probate Code as a putative spouse. (A putative spouse is one who holds a mistaken, but reasonable and good faith belief that he or she is legally married.) However, Trudy’s position was undermined by email correspondence she showed to us wherein she repeatedly asked Jeremy, over a series of years, to make their “marriage” official. It was clear that Trudy would not be able to prove she held a good faith belief in the legality of her “marriage.” Thus, we had to advise her to leave the home as Jeremy’s heirs had requested and forego any efforts to receive a distribution from Jeremy’s estate.
The moral of these stories: It may sound archaic in this day and age, but if you and your partner intend to have any rights in each other’s estates, the most straightforward way to accomplish that may be to simply get married. Regardless, you should seek out an experienced estate planning attorney who can help you prepare a will and/or trust that will protect your loved one in accordance with your wishes.
 In Probate Code section 72 and Family Code section 143, “spouse” is defined to include registered domestic partners (RDPs). Family Code section 297.5 provides that RDPs have the same rights, protections, and benefits as legally married spouses. For the purposes of this article, the term “spouse” is used throughout, but includes RDPs.