Take-Away: Some states actually recognize a putative spouse and will authorize the distribution of intestate or surviving spouse benefits to that putative surviving spouse.

Background: In the past, we have covered (some would say ad nausea) the concept of a common law marriage and the fact that nine states still recognize some form of a common law marriage based upon the conduct of the couple, the most important factor of which is that they hold themselves out to the public as being married. Michigan no longer recognizes common law marriage. However, other states in which a trust beneficiary resides might still recognize a beneficiary’s common law marriage when identifying potential contingent beneficiaries. In that event, Michigan may be required to provide Full Faith and Credit to the laws of that other state. Because of this uncertainty, regarding who may be viewed as a legal surviving spouse, some Will and Trust instruments may need to provide a definition of marriage and spouse if the trustee is directed to make distributions to a deceased beneficiary’s spouse, or the deceased beneficiary possesses a limited power of appointment where their spouse is a permissible appointee.

  • While a putative spouse with legal rights sounds extreme, recent statistics suggest that our rapidly shifting culture presents some confusion in the interpretation of Wills and Trusts. For example, 5% of Americans are polyamorous, having serious intimate relationships with more than one person at a time. [Zane, Who Really Practices Polyamory? Rolling Stone, November 12, 2018.]
  • In addition, some states legally recognize civil unions and domestic partnership, relationships with confer spousal rights; so while the couple is not a ‘true’ marriage, the participants are legally treated as being in a marital relationship.
  • Added to this confusion is that certain methods to attain the status of a spouse may be available in some states, yet not in others, so choice-of-law issues may have to be addressed in a Will or Trust instrument.
  • Thus, beyond common law marriages, civil unions, and domestic partnerships, we may have yet another relationship issue to contend with in the interpretation of a testamentary instrument: putative spouses.

Putative Spouse: An individual’s Will or Trust instrument may need to address the possibility of a putative spouse. A putative spouse is a person who cohabited with the decedent in a good faith, but mistaken, belief that he/she was married to the decedent. For example, a couple might marry believing that a divorce was final, when in fact one member of the couple was still legally married to someone else. The second marriage is thus invalid under bigamy laws. Some states formally recognize the legal standing of a putative spouse, particularly in assigning elective rights or rights of intestacy to the putative spouse (usually this is the case only if there is no other ‘legal spouse’ with a priority claim to the decedent’s estate.) Apparently, these states will confer the status of spouse if the putative spouse is the only person who claims to be the decedent’s surviving spouse. In those limited situations, that person takes the intestate share that a legal spouse would take.

  • The problem of assigning priority rights to a decedent’s estate becomes more complicated if there are multiple claimants, e.g. if the intestate decedent is survived by both a putative spouse and a legal spouse, or by two or more putative spouses. Clearly written provisions in a Trust instrument or Will can either avoid claims by a putative spouse, or protect those claims, if that is the decedent’s intent.

Nonmarital Partners:  While the idea of a putative spouse admittedly seems to be a stretch, recent statistical studies show that there are more than 8 million nonmarital couples in the U.S. [U.S. Census Bureau Releases 2018 Families and Living Arrangement Tables, www.census gov/newsroom/press-releases/2018/families.html]. Individuals could also be involved in several intimate relationships at the same time, i.e. polyamory, or they may be married yet also have an intimate nonmarital partner, e.g. Warren Buffet living with another for years yet remaining married to his wife. Alternatively, an individual may be divorced and living with a new partner, or may have a long-term partner and be involved in a ‘living apart together’ relationship, which is yet another new phenomenon among older Americans. The point is that with multiple relationships comes differing legal claims, e.g. a putative spouse’s exercise of the right to elect to take against the estate of the decedent that may have to be addressed in some form of probate litigation.

Conclusion: Planning for the modern family requires a comprehensive review of an individual’s intent with respect to the rights of any, or all, family members, family  being more expansive in it formal definition these days. Equally important will be the need for the individual to be forthright to disclose highly sensitive personal facts, e.g. the existence of multiple polyamory relationships, putative spouses, transgender beneficiaries, children out of wedlock, etc. In order to avoid protracted probate litigation where alleged rights are asserted [e.g. Michigan’s antilapse statutes,  MCL 700.2601; 700.2603]  will require more precise definitions in Wills and trust instruments along with a very clear statement of intent as to who is to benefit from the decedent’s estate. If the individual balks at engaging in perceived far-fetched discussions with regard to putative spouses, polyamory, or definitions of who is intended as a beneficiary in their Will or trust instrument, just mention Caitlyn Jenner’s parents’ estate plan- Bruce or Caitlyn? In a fast changing culture, the use of definitions can go a long way to avoid unnecessary probate litigation over perceived rights.