Law of Wills, 2016A

V.
Virtually every court which has considered the issue has accorded a surviving putative spouse the
same rights as a surviving legal spouse. The one court which has decided against such benefits did so
in a poorly reasoned and unsound decision. Moreover, as in most putative spouse cases, the couple
involved here lived together for a substantial period of time, conducting themselves as husband and
wife throughout their union. To deny one of their members an intestate share of the decedent’s
separate property while permitting him to succeed to the quasi-marital property defies logic and
leads to unjust results. Therefore, this court holds that a surviving putative spouse is entitled to
succeed to a share of the decedent’s separate property. Similar reasoning supports the conclusion
that a surviving putative spouse is entitled to first preference for letters of administration.
Accordingly, the portion of the trial court’s judgment denying Garvin an interest in decedent’s
separate property and letters of administration in decedent’s estate is reversed. In all other respects,
the judgment is affirmed.
Notes, Problems, and Questions
1. If Garvin is recognized as a legal spouse and the jurisdiction has adopted the UPC, what portion
of Leslie’s estate would Gavin take?
2. What were the reasons the court gave for giving Garvin, the putative spouse in this case, the
status of surviving spouse?
3. What three reasons did the Levie court give for denying the putative surviving spouse status?
4. How did the Leslie court justify not following the holding of the Levie case?
5. The surviving spouse receives a share of an intestate decedent’s estate because the law presumes
that a decedent wants to provide for the spouse that he or she leaves behind. Should that
presumption be rebuttal? What if one spouse finds that the other spouse is cheating and dies
intestate before he or she can obtain a divorce? Would the decedent really want his or her cheating
spouse to inherit his or her separate property?
6. Consider the following example. Griffin had no intention of marrying Cindy, but he wanted to
have intimate relations with her. Cindy had taken a purity pledge to avoid sex before marriage, so
she refused Griffin’s advances. Griffin often told his friends that he would not get married unless
the woman signed a prenuptial agreement. Griffin got Stanley, one of his friends, to pretend to be a
licensed minister. Stanley performed the ceremony and declared that Griffin and Cindy were legally
married. Two days later, Griffin died intestate in a car accident. He was survived by his parents, Joe
and Betty; his brothers, Henry and Paul; and Cindy. Griffin left an estate of $930,000. Is Cindy a
putative spouse? Should she be entitled to an elective share of Griffin’s estate after just two days of
marriage? If she is entitled to take, how much would Cindy get in a UPC jurisdiction?
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