How Does Common Law Marriage Affect Probate?

In California, Common Law Marriage is not recognized. No matter how long a couple cohabitates, it is not legally seen as a marriage.


Some couples have written agreements with each other that can hold up in court. For example, when one person promises, either verbally or in writing, to support the other throughout their life, this palimony can come up in court. But it doesn’t always hold up when one side of the couple has passed away.


How to Avoid Probate When Not Legally Married


If you are not married to your partner at the time of their death, then that makes preparing a will that much more critical. If you want any claim to the assets and life that you’ve built together, it is vital to create a will that spells out exactly who has access to:


· Financial Power of Attorney: Who has the right to close bank accounts, send out bills, and transfer money when your partner passes away? The will can assign those responsibilities to you or another trusted family member.

· Medical Power of Attorney: If you want access to your partner’s medical information and be included in life-changing surgeries and decisions, you will need to be given medical power of attorney.

· Property Ownership: If you have cohabitated for a number of years without getting married, it is wise to own property and assets together. This will help in the probate process if there is not a will. However, if there is a will, make it clear how assets should be divided if death or incapacitation occurs.

· Life Insurance Beneficiary: Your partner can name you as a beneficiary in their life insurance policy. You don’t have to be married to be the beneficiary. But you do have to go through the proper paperwork to assign who is granted the life insurance money after death.

All of these items can be passed to the next of kin if you don’t have legal documentation pointing to a life partner as a beneficiary.


If you are in a partnership without being married and would like to get your affairs in order, contact Miles & Hatcher, LLP, immediately. You don’t want probate to decide who gets what after the death of your partner. Call to schedule a free consultation: (909) 481-4080.

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