Estate of Leslie

Decision Date08 November 1984
Citation207 Cal.Rptr. 561,37 Cal.3d 186,689 P.2d 133
CourtCalifornia Supreme Court
Parties, 689 P.2d 133 ESTATE OF Fay Reah LESLIE, Deceased. Alton B. SMITH, Petitioner and Respondent, v. William GARVIN, Petitioner and Appellant. L.A. 31858.

A. Merle Sessions, San Bernardino, for petitioner and appellant.

Darcy A. Skaggs, Baldwin Park, for petitioner and respondent.

BIRD, Chief Justice.

Is a surviving putative spouse entitled to succeed to a share of his or her decedent's separate property under the Probate Code?


On April 22, 1972, William Garvin and Fay Reah Leslie were married in Tijuana, Mexico. The marriage was invalid because it was never recorded as required by Mexican law. 1 However, Garvin believed that he and Leslie were validly married. The couple lived together as husband and wife for almost nine years, until Leslie's death in 1981. Throughout this period, they resided in a house in Mira Loma. The house had been purchased by Leslie, Mike Bosnich, her former husband, and respondent Alton B. Smith, a son from a prior marriage who lived next door. This case concerns the administration and distribution of Leslie's estate.

During Leslie's and Garvin's marriage, restaurant property, which had been acquired by Leslie prior to the marriage, was remodeled. As a result, it increased in value. There is conflicting testimony concerning the source of funds and labor used for this remodeling. Garvin testified that the improvements were paid for with "community funds" and that he and Leslie did most of the remodeling. Smith testified that (1) the money used to remodel the restaurant came from his mother's separate funds, (2) he and his brother performed most of the work, and (3) Garvin's work on the remodeling was minimal. After the improvements were made, Leslie sold the restaurant and received a promissory note secured by a deed of trust in her name.

During the marriage, Leslie and Garvin acquired three parcels of real property in the Desert Hot Springs area. The manner in which title was taken varied for each parcel. The first two parcels were purchased in 1977. Title to Parcel 1 was taken in joint tenancy by "Fay Bosnich, an unmarried woman, and William A. Garvin, an unmarried man." Title to Parcel 2 was taken in the name of "Fay Bosnich, an unmarried woman." Parcel 3 was purchased approximately 16 months later, and title to it was taken as a tenancy in common by "Fay Bosnich, an unmarried woman, and William Garvin, a widower." 2

Garvin and Leslie also purchased furniture during their marriage. There is conflicting testimony regarding which pieces of furniture they acquired together. Smith testified that with the exception of two end tables purchased by his mother and Garvin, the furniture in the Mira Loma residence had been acquired either during the 15 years that Smith and his mother lived together or during his mother's former marriage. Garvin testified that he and Leslie together purchased 50 percent of the furniture in the residence.

During the marriage, a trustee bank account was established for Leslie's granddaughter, Deborah E. Hoskins, with Leslie named as trustee. Leslie deposited the payments she received from the sale of her restaurant property into this account. Garvin testified that $1,000 of "community funds" were also deposited into this account. He also testified that Leslie withdrew money from the account and placed that money into the couple's common funds.

On February 6, 1981, Leslie died intestate. She was survived by Garvin, her son Smith, and three other adult children from a prior marriage.

Smith filed a petition for letters of administration in the estate of his deceased mother. Garvin objected to Smith's petition, filed his own petition for letters of administration, and sought a determination as to who was entitled to distribution of the estate.

Smith requested to be appointed special administrator to take possession of the estate and to preserve it until an administrator could be appointed. (See Prob.Code, § 460. 3 ) The superior court granted that request.

In January 1982, a court trial was held to determine the appointment of the administrator and the distribution of the property in the estate. The trial court found that a putative marriage had existed between Garvin and Leslie, 4 denied Garvin's petition for letters of administration, and determined that he was not entitled to any of decedent's separate property. The court also found that some of the property was quasi-marital 5 and some was separate.

Specifically, the trial court found that three bank accounts, the two end tables, and approximately $2,400 in cash were quasi-marital property. The remaining property was found to be Leslie's separate property, consisting of: (1) Parcel 2, which was in decedent's name alone, (2) an undivided one-half interest in Parcel 3, which was in decedent's and Garvin's names and held as a tenancy in common, (3) the remaining furniture in the Mira Loma residence, (4) a two-thirds interest in the Mira Loma residence, (5) the trustee bank account, and (6) the promissory note from the sale of the restaurant property. Finally, the trial court found that the funds used to improve the restaurant had come from decedent's separate property and the improvements had been made by decedent's sons.

Garvin makes several contentions on appeal. First, he argues that he is entitled to an intestate share of the decedent's separate property. Second, he contends that he should have been appointed administrator of the estate. Lastly, he challenges several of the trial court's separate property findings.


The principal issue presented by this case is whether a putative spouse is entitled to succeed to a share of his or her decedent's separate property. 6 Although this court has not directly confronted this question, the conclusions of other courts on this and analogous questions are instructive.

Some guidance can be gleaned from decisions which have held that a putative spouse is entitled to succeed to quasi-marital property. (See ante, fn. 5.) One such decision is Feig v. Bank of America etc. Assn. (1936) 5 Cal.2d 266, 54 P.2d 3. The Feigs were married in 1889. A year later, Mrs. Feig obtained a divorce without Mr. Feig's knowledge. The couple continued living together as husband and wife. In 1921, Mrs. Feig suggested that she and Mr. Feig remarry. It was only then that Mr. Feig discovered that he and Mrs. Feig were divorced. They remarried that year. In 1929, Mrs. Feig died intestate. (Id., 5 Cal.2d at p. 270, 54 P.2d 3.)

At issue in Feig was the property acquired after the 1890 divorce and before the 1921 remarriage. The trial court awarded all the property to Mr. Feig. This court, affirming the judgment, noted that the property acquired by the Feigs during the period they were divorced, "although not community by reason of the fact that there was in truth no marriage, should be marked by all the incidents of community property." (5 Cal.2d at p. 273, 54 P.2d 3.) Thus, Mr. Feig was entitled to all of the "community" property. (Id., 5 Cal.2d at pp. 273-274, 54 P.2d 3.)

Although the surviving husband in Feig was the legal spouse at the time of his wife's death, he was also the putative spouse for the period during which the couple were divorced. Thus, Feig essentially holds that a surviving putative spouse is entitled to all the property acquired during the putative marriage.

This holding was made explicit several years later in Estate of Krone (1948) 83 Cal.App.2d 766, 189 P.2d 741. There, the decedent was survived by his putative wife and three children from a previous marriage. The trial court determined that the putative wife was entitled to only one-half of the "community" estate. (Id., 83 Cal.App.2d at pp. 766-767, 189 P.2d 741.) The Court of Appeal modified the judgment to award all of the "community" estate to the putative wife. (Id., 83 Cal.App.2d at p. 770, 189 P.2d 741.) The court held that when a putative spouse dies, the surviving spouse takes "the same share to which she would have been entitled as a legal spouse." (Id., 83 Cal.App.2d at p. 769, 189 P.2d 741.)

The Krone court reasoned that "the logic appears irrefutable that if according to statute [ § 201 ]7 the survivor of a valid, ceremonial marriage shall be entitled to take all of the community estate upon its dissolution, then by parity of reasoning why should not the [putative] wife inherit the entire estate of a putative union upon the death of her husband intestate? Clearly, she does inherit all." (83 Cal.App.2d at pp. 769-770, 189 P.2d 741; accord Union Bank & Trust Co. v. Gordon (1953) 116 Cal.App.2d 681, 689-690, 254 P.2d 644; Mazzenga v. Rosso (1948) 87 Cal.App.2d 790, 793-794, 197 P.2d 770.) It would be contrary to established law to deny a putative spouse "her rights as a surviving spouse to inherit the total of the gains of the putative marriage." (83 Cal.App.2d at p. 770, 189 P.2d 741.)

Krone has been read "to recognize a putative [spouse] as a legal spouse for the purpose of succession." (Kunakoff v. Woods (1958) 166 Cal.App.2d 59, 65-66, 332 P.2d 773.) That reading is clearly applicable to the determination of the separate property rights of a putative spouse.

A number of Court of Appeal decisions support the conclusion that a putative spouse is entitled to succeed to a share of the decedent's separate property. Estate of Goldberg (1962) 203 Cal.App.2d 402, 21 Cal.Rptr. 626, is one such case. Sam Goldberg died intestate, survived by Edith, his putative spouse, and three children from a prior marriage. The trial court found that Edith was both Sam's actual and putative spouse. She was awarded all of the community property as well as one-third of Sam's separate property. The other two-thirds of the separate property was awarded to Sam's children. (Id., 203 Cal.App.2d at p. 404, 21 Cal.Rptr. 626; see § 221, ante, fn. 6.) The children appealed.

The Court of Appeal agreed with the trial court's...

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