If your partner died in California and you lived together as a married couple without ever getting a marriage license, your legal standing depends on where and how the relationship was formed. California common law marriage rights when a partner dies exist only in a narrow way: California itself has not allowed couples to create a common law marriage since 1895, but it will recognize one that was validly formed in a state that permits them. If you can prove that, you have the same inheritance, Social Security, and wrongful death rights as any other surviving spouse. If you cannot, two backup doctrines, putative spouse status and a Marvin contract claim, may still give you something, though less than full spousal rights.
If the Relationship Was Formed Entirely in California
Living together for decades inside California, sharing finances, and raising children together does not create a legally recognized marriage here, no matter how long it lasted. California Family Code Section 300 requires consent, a marriage license issued by the county clerk, and a solemnization ceremony performed by an authorized person.1California Legislative Information. California Code FAM 300 – Marriage as a Civil Contract
The consequence at death is harsh. A surviving partner with no license and no out-of-state common law marriage cannot inherit under intestate succession as a spouse, cannot file a spousal property petition, and cannot claim Social Security survivor benefits based on the relationship. The law treats them as an unrelated person. The putative spouse doctrine and Marvin claims, discussed further below, are the only remaining options in that situation.
When California Recognizes an Out-of-State Common Law Marriage
California Family Code Section 308 says a marriage contracted outside California is valid here if it was valid where it was formed.2California Legislative Information. California Code FAM 308 – Marriage Contracted Outside This State That rule covers common law marriages. If you and your partner established one in a state that permits them and later moved to California, your marriage remains valid here, and recognition is complete rather than partial.
The states that currently allow new common law marriages include Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, and Utah, along with the District of Columbia.3National Conference of State Legislatures. Common Law Marriage by State New Hampshire recognizes common law marriage only for inheritance purposes after one partner dies. Several other states, including Pennsylvania and Georgia, abolished common law marriage but still honor those formed before their respective cutoff dates. If your marriage was formed before the deadline in one of those states, it still counts.
The requirements vary by state, but they generally share three elements: both partners agreed to be married, they lived together, and they presented themselves publicly as a married couple. Both partners also had to have the legal capacity to marry, meaning both were old enough and neither was already married to someone else. The specific test is the one used by the state where the marriage was formed, not a generic national standard. Texas, for example, requires a formal declaration or agreement plus cohabitation and public representation. Colorado uses a totality-of-the-circumstances analysis and does not impose a specific cohabitation requirement.
Proving the Marriage in Probate Court
This is where most claims struggle. There is no marriage certificate, and the burden sits entirely on the surviving partner to show the marriage existed and met the originating state’s requirements. The California probate court decides marital status when the deceased died without a will or when a surviving spouse’s rights are in dispute.
Courts look at the full picture. Vague assertions about living together are not enough: the evidence has to show both the intent to be married and public conduct consistent with that intent. The strongest documentation comes from legally significant acts the couple took as a married couple:
- Joint federal or state tax returns filed as “married filing jointly,” which involve a declaration under penalty of perjury.
- Deeds, titles, and other property records that list both partners with spousal language.
- Joint bank accounts, joint credit cards, and loans taken out together.
- Insurance policies, retirement accounts, and other beneficiary designations naming the surviving partner as a spouse.
- Statements from friends, family, colleagues, and neighbors who knew the couple as married and can describe specific instances of the couple presenting themselves that way.
Lease agreements signed together, emergency contact forms listing the partner as a spouse, children’s school records naming both as parents, and holiday cards signed with a shared family name all contribute. The more consistent and long-standing the pattern, the more persuasive it becomes.
Social Security Survivor Benefits Have Their Own Process
If you are claiming Social Security survivor benefits, the Social Security Administration runs its own verification separately from probate court. Federal rules direct the SSA to evaluate whether the marriage would be recognized by the courts of the state where the deceased was domiciled.4Social Security Administration. SSR 61-9 – Validity of Common-Law Marriage
The SSA uses Form SSA-754, the Statement of Marital Relationship, to collect detailed information about the understanding or agreement when you began living together, how the two of you introduced each other to others, what names you used, and whether either of you had prior marriages.5Social Security Administration. Form SSA-754 – Statement of Marital Relationship The agency’s preferred corroboration is signed statements from you and two blood relatives of the deceased; if blood relatives are unavailable, statements from other people who knew the couple can substitute.6Social Security Administration. 20 CFR 404.726 – Evidence of Common-Law Marriage Gathering these statements early, while witnesses are available and memories are fresh, makes the process much easier.
What Recognition Actually Gives You
Once a California probate court confirms the common law marriage was valid, you have the same rights as any formally married surviving spouse. The practical impact is largest when the deceased died without a will.
Under California’s community property system, each spouse already owns half of the community property accumulated during the marriage. When one spouse dies without a will, the surviving spouse keeps their own half and inherits the deceased’s half, which means the survivor ends up with all of the community property.7California Legislative Information. California Code PROB 6401 – Intestate Share of Surviving Spouse
Separate property, meaning assets owned before the marriage or received as gifts or inheritance during it, is divided differently depending on who else survived the deceased. The surviving spouse takes all of the separate property if there are no surviving children, parents, or siblings. The share drops to one-half if the deceased left one child, or no children but surviving parents or siblings, and to one-third if the deceased left more than one child or one child plus descendants of a deceased child.7California Legislative Information. California Code PROB 6401 – Intestate Share of Surviving Spouse
A recognized surviving spouse can also use a Spousal Property Petition, a simplified process for transferring community property and the deceased’s property into the survivor’s name without a full probate administration.8Justia Law. California Code PROB 13500-13506 – Passage of Property to Surviving Spouse For a common law spouse, the court has to confirm the marriage first, so the process involves more steps than it would with a certificate in hand.
Beyond inheritance, recognition carries standing to bring a wrongful death claim if someone else’s negligence or wrongful act caused the death. California’s wrongful death statute lets the surviving spouse sue for damages.9California Legislative Information. California Code CCP 377.60 – Cause of Action for Wrongful Death Recognized spouses also gain the ability to make funeral decisions, access the deceased’s pension or retirement accounts as a surviving spouse, and claim employer-provided death benefits.
Putative Spouse: When You Believed You Were Married
Not every surviving partner can prove a valid common law marriage, and some never knew the marriage was in question. California’s putative spouse doctrine protects a person who genuinely believed in good faith that they were legally married. Under Family Code Section 2251, a court can declare someone a putative spouse if that belief was honest and reasonable.10California Legislative Information. California Code FAM 2251 – Status of Putative Spouse
This can apply when a ceremony turned out to be defective because the officiant was not authorized, or because a prior divorce was never finalized, or when one partner was told the couple had established a common law marriage in another state when the legal requirements were never actually met. If the court finds good-faith belief, the putative spouse gets property rights to quasi-marital property, meaning assets that would have been community property had the marriage been valid.
Good faith is measured by what a reasonable person would believe in the same circumstances. Courts consider whether the couple lived together, filed joint taxes, applied for joint loans or mortgages, and otherwise carried themselves as married. California’s wrongful death statute also lets a putative spouse bring a claim without qualifying as a legal surviving spouse, provided the court finds the good-faith belief existed.9California Legislative Information. California Code CCP 377.60 – Cause of Action for Wrongful Death Inheritance rights for putative spouses are more limited and rest largely on judicial interpretation, though California courts have recognized the right of a putative spouse to inherit from a deceased partner’s estate in certain circumstances.
Marvin Claims: Contract Rights for Cohabitants
When neither a valid common law marriage nor putative spouse status fits, one more option remains, though it provides far less than spousal rights. The California Supreme Court’s decision in Marvin v. Marvin held that unmarried cohabitants can enforce express or implied contracts about property and finances, as long as the agreement is not based solely on a sexual relationship.11Justia Law. Marvin v. Marvin – Supreme Court of California
If the couple had an express agreement about sharing property or supporting each other, courts will enforce it. Even without an explicit agreement, a court can examine the couple’s conduct to decide whether an implied contract, partnership, or joint venture existed, and can apply equitable remedies such as a constructive trust or compensation for the reasonable value of domestic services one partner provided.
Marvin claims are not a substitute for spousal rights. They do not provide intestate inheritance, Social Security survivor benefits, or wrongful death standing. They are contract claims brought against the estate after death, and other heirs or beneficiaries often resist them. The deadlines are short: two years for breach of an oral or implied contract, four years for breach of a written contract. For a long-term partner who contributed significantly to the household and cannot prove a marriage, a Marvin claim may be the only way to recover anything at all.
Why Timing Matters
California does not impose a hard deadline for filing a probate petition. An interested person can petition for administration of the estate at any time after the death.12California Legislative Information. California Code PROB 8000 – Petition for Administration Delay still creates serious problems. Witnesses move, become unavailable, or die. Documents get lost. Other family members may petition the court first and distribute the estate before a common law spouse makes a claim. If a will is admitted, a surviving spouse who wants to contest the proceedings generally has 120 days to act. Social Security survivor benefits have their own application windows. Begin gathering evidence and talk to a probate attorney as soon as possible; the legal work of proving a common law marriage is hard enough without reconstructing the record years later.