Community and Separate Property

Dear Len & Rosie,

My boyfriend and I are registered domestic partners. He is a widower, and I am a widow. Shortly after we meet he made out a living trust leaving everything to his son and two grandchildren. We live in his home which is part of the trust. If he dies do I get thrown out on the street? Do I have any recourse? I give him money every month which he deposits into his banking account. I am afraid that if he dies, I will be homeless.


Dear Carmen,

In general, the only rights you have with respect to your domestic partner's estate are those created by contract. In 1976, in the famous "Marvin v. Marvin" case, the California Supreme Court held that agreements for support between unmarried couples were valid, enforceable contracts. That means if your partner promise to provide for you for your lifetime in return for your companionship and support, then you can hold him to his word.

But that's easier said than done. An agreement for support should be in writing, because if your partner dies before you, his son and grandchildren aren't going to want to give you anything. In their eyes, you won't be the woman who loved and supported him in his declining years. To them you're just a gold-digger. Marvin agreements are also difficult to prove. In 1976, Michelle Marvin won the right to sue Lee Marvin for support, but in the end she still lost because she was unable to prove an agreement for support actually existed.

There is another way you may have a claim against part of your partner's assets upon his death. Last July, new changes to the way estates without wills are distributed. Domestic partners registered with the California Secretary of State are by default entitled to a share of their deceased partner's separate property just like a surviving spouse (usually one-third or one-half of the separate property). Unfortunately, this law probably does not apply to you, because your partner likely signed a pour-over will when he created his trust, and this would certainly not apply to any assets held within your partner's trust.

What you really need to do is to discuss your concerns with your partner, and try to get him to see the need behind making some provision for you upon his death. It could be a simple as a house trust allowing you to live in his home until your death, with you paying all of the expenses. It would not be too difficult to create an estate plan for your partner that provides for you while protecting the inheritance of his descendents.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, 3-4PM on Newstalk910AM.