Law of Wills, 2016A

5. In America, there are variations of two marital property systems, separate property and
community property. The primary difference between the schemes is that, in a separate property
jurisdiction, the spouses own separately all property each obtains; in a community property state, the
spouses own all property acquired from earnings after marriage in equal, undivided shares. See In re
Marriage of Brandes, 192 Cal. Rptr. 3d 1, 9 (Cal. App. 4 th 2015).
The two main legal issues that impact the surviving spouse’s ability to inherit are (1) whether
or not the person is a spouse and (2) whether or not the person survived the intestate decedent.
3.2 Definition of Spouse
Traditionally, “spouse” referred to a person who is married to a member of the opposite sex.
In cases where a man who is legally married to a woman or a woman who is legally married to a man
dies intestate, it is easy to determine the person that has the right to take a spouse’s share.
Nonetheless, the definition of spouse has evolved. Consequently, legislatures and courts have
interpreted the term broadly. In this section, I examine factors that may influence a person’s ability
to be legally identified as a spouse.
3.2.1 Putative Spouse
The putative spouse doctrine was designed to protect a person who may have been tricked
into a marriage. For example, a woman may marry a man without knowing that he is already legally
married to someone else. If that woman enters the marriage in good faith and functions as a wife, is
it fair for the law to deny her the advantages of marriage? The woman is given the benefit of the
doubt because the law presumes that she would not have married the man had she known that he
already had a wife. Thus, if the woman learns of the other wife and remains in the marriage, she
loses her status as a putative spouse. The loss of that identity deprives the woman of the ability to
receive any type of spousal support, including an intestate portion of the man’s estate.
M.S.A. § 518.055 Putative Spouse (Minnesota)
Any person who has cohabited with another to whom the person is not legally married in the good
faith belief that the person was married to the other is a putative spouse until knowledge of the fact
that the person is not legally married terminates the status and prevents acquisition of further rights.
A putative spouse acquires the rights conferred upon a legal spouse, including the right to
maintenance following termination of the status, whether or not the marriage is prohibited or
declared a nullity. If there is a legal spouse or other putative spouses, rights acquired by a putative
spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses,
but the court shall apportion property, maintenance, and support rights among the claimants as
appropriate in the circumstances and in the interests of justice.
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