“I’m sorry, but the bank cannot release any information to you,” the manager said.
Christine was trying to close out her deceased husband’s account. “Why not, I gave you his death certificate. What’s the problem?”
With a look that said, ‘this conversation is over,’ the manager told Christine that since there was no beneficiary on the account, the bank would need a court order to release any information.
“That’s crazy! He was my husband. It automatically goes to me, right?” Frustrated and mad, Christine left the bank crying. When she got back to work she told a co-worker what happened, who in turn, told Christine to see a lawyer.
No Common Law Marriage in California
“So let me get this right,” the attorney said. “You and Steve had lived together for 25 years, have a child together, but the house and bank accounts are in his name only. Why didn’t you take title as husband and wife?”
Frowning, she said, “They wouldn’t let us. They said we had to be married.”
Surprised, he asked, “So, you aren’t married? You don’t have a marriage license?”
Nodding her head, “That’s right. We have, or had, a common law marriage.”
Exhaling while leaning back in his chair, he said, “Christine, you have more problems than just that with the bank. You see, California doesn’t recognize common law marriages. So unless you are a co-owner or a beneficiary, you might not have any rights or interest in his property.”
Sitting up, Christine said, “What do you mean no rights or interest? Doesn’t everything automatically go to me?”
Shaking his head, the attorney said, “In this case, there is no automatic. His estate likely has to go through probate.”
Palimony – Property Rights Between Unmarried Cohabitants
Clearly upset over what she just learned, Christine left the office telling the attorney she’d call him later. When she got home she looked up common law marriage on the internet and found that what the attorney told her was true. But during her search she came across something called “Palimony” and thought that might work for her. Getting the attorney on the phone she asked, “We were together for 25 years. Don’t I qualify for palimony?”
Remembering Marvin v. Marvin, the attorney told her about the case between the actor, Lee Marvin, and his girlfriend, Michelle Marvin. He explained how after living together for some time, Lee broke off the relationship. Michelle wanted alimony, but since they were not married, the Family Law concept of alimony didn’t apply. “You see, since she was not his spouse, she had no spousal property rights. Also, the court ruled that since there was no express or implied contract between them that said Lee would provide for her in return for Michelle giving up her career, Michelle wasn’t entitled to anything.”
Quiet for a bit, Christine asked if being together for 25 years and having children together wasn’t a contract.
“If it wasn’t in writing you will have to prove an implied contract. But even then, now that Steve has died without a will, the laws of intestate succession take over.
The Take Away
California is a community property state and common law marriage is not recognized. In order to have spousal property rights, the parties must be legally married. Further, to avoid court proceedings or problems with banks and title companies, title to your property should reflect your marital status. Even if you decide not to marry but want to provide for your “cohabitant,” each party should name the other as a beneficiary of their accounts, will, or trust.
By David Sarazen, attorney-at-law – www.davidsarazen.com