Quick answer: Yes. Under Code of Civil Procedure section 377.60, a putative spouse, meaning the survivor of a void or voidable marriage who believed in good faith that the marriage was valid, may bring a California wrongful death claim if they were dependent on the person who died. The defect in the marriage does not erase the claim; good faith and dependence are what the statute asks for.
Losing a spouse is devastating. Learning in the same season that the marriage was never legally valid is a second injury, and it often arrives from a defense lawyer's letter. If that is where you are standing, know this before anything else: California law has a doctrine built for exactly your situation. Call (626) 888-2223 and you will speak directly with Tom Vertanous.
What is a putative spouse?
A putative spouse is someone whose marriage turns out to be legally void or voidable, but who believed in good faith that it was valid. The word "putative" just means reputed or believed. The law recognizes an obvious truth: not everyone in an invalid marriage knew it was invalid, and the honest partner should not be punished for a defect they had no reason to suspect. For wrongful death purposes, Code of Civil Procedure section 377.60 gives a putative spouse who was dependent on the decedent the right to bring the claim, and it extends similar protection to the putative spouse's children.
How a marriage ends up void or voidable
These cases almost never involve carelessness by the innocent spouse. They involve defects that stayed hidden for years:
- A prior marriage that was never actually dissolved, making the later marriage invalid, often without the innocent spouse having any idea.
- A ceremony abroad that was never properly registered or was not recognized the way the couple believed.
- A license that was defective, missing, or never properly completed.
- A ceremony that did not meet legal requirements for solemnization.
In each scenario, the couple lived as married people because they believed they were married people. The paperwork failed. The life did not.
What a putative spouse must show
Two things. First, good faith: a genuine belief that the marriage was valid. Second, dependence: the statute protects a putative spouse who was dependent on the decedent. Both are questions of proof, not magic words, and both are exactly the kind of showing a trial firm builds deliberately rather than hopes for.
How good faith is proven
With the life itself. The ceremony and whoever attended it. The years together. Joint tax returns, joint accounts, the family home, insurance forms naming each other, and the way the couple held themselves out to family, community, and church. And on the other side of the ledger, the absence of red flags: no knowledge of a prior undissolved marriage, no reason to doubt the paperwork. Timing matters too, because good faith ends when knowledge begins. A survivor who learned the truth only after the death has the cleanest possible record.
A putative spouse is not a common law spouse
These two get confused constantly, and the difference decides cases. California does not recognize common law marriage: living together, however long and however committed, does not create a marriage or wrongful death standing by itself. The putative spouse doctrine is the opposite situation. It protects people who actually went through a ceremony and genuinely believed they were married. It rewards a good faith attempt to marry, not cohabitation. A registered domestic partner, meanwhile, is protected directly by the statute. Where you fall among these categories is a legal question worth twenty minutes with a lawyer, not a guess.
A common example
Consider a woman who married her husband in a religious ceremony nineteen years before a drunk driver killed him. She raised his children, depended on his income, and never doubted the marriage for a day. In the months after the crash, the family learns his divorce from a first wife, decades earlier and in another country, was never finalized. The defense argues she is a legal stranger with no claim. The putative spouse doctrine says otherwise: her good faith belief in the marriage, lived out over nineteen years, plus her dependence on him, is precisely what Code of Civil Procedure section 377.60 protects. The defect belongs to the paperwork. The claim belongs to her.
Move before the deadlines decide for you
Wrongful death claims carry unforgiving clocks: generally two years, and when a public entity may share responsibility, a written government claim is generally due within six months, a trap we walk through step by step in our guide to the government claim deadline. Putative spouse questions add a layer of proof that takes time to build, which is one more reason the first call should come early. For the complete picture of who holds a California wrongful death claim, spouses, children, heirs, stepchildren, and dependents, read our full guide on who can sue for wrongful death, part of our wrongful death practice.
Frequently asked questions
Is a putative spouse treated like a legal spouse in a wrongful death case?
For the right to sue, largely yes. Code of Civil Procedure section 377.60 lets a putative spouse who was dependent on the decedent bring the wrongful death claim, and it extends protection to the putative spouse's children in the circumstances the statute describes. The defect in the marriage does not erase the loss, and California does not pretend it does.
What counts as good faith?
A genuine belief that the marriage was valid. Courts look at the whole picture: the ceremony, the license, the years of married life, joint finances, and how the couple held themselves out to family and community. Knowing about the defect defeats the claim, so the timing of when you learned the truth matters enormously.
We lived together for years but never had a ceremony. Can I sue?
Generally not as a spouse. California does not recognize common law marriage, so cohabitation alone, however long and however real, does not create wrongful death standing. A registered domestic partner is protected, and the putative spouse doctrine protects a good faith but invalid ceremonial marriage. If your situation sits anywhere near these lines, call before assuming anything.
My spouse hid a prior marriage from me. Does the doctrine still protect me?
That is the classic putative spouse case. The doctrine exists precisely for the person who was deceived: one party's bad faith does not destroy the innocent party's good faith. If you believed the marriage was valid and depended on your spouse, Code of Civil Procedure section 377.60 can give you the claim.
Told you have no claim because the marriage "wasn't real"? Get a second opinion.
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Request a ConsultationResults depend on the unique facts of each case. Prior results do not guarantee or predict a similar outcome in any future matter. This article is general information about California law, not legal advice, and does not create an attorney-client relationship. Responsible for content: Tom Vertanous, Esq., The Vertanous Firm, P.C., SBN 330760, (626) 888-2223.