Detailed Answer
Under California law, a surviving spouse may request a family allowance and an elective share of the decedent’s estate even if the marriage certificate is incomplete or missing. The primary statute governing family allowances is Probate Code section 13500 et seq. (see https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=13500&lawCode=PRC). The elective share right is set out in Probate Code section 21610 et seq. Family Code section 350 requires the county recorder to file and maintain marriage records (see https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=350&lawCode=FAM).
When the marriage certificate is unavailable, the court will allow alternative proof of a valid marriage. Acceptable evidence includes:
- Affidavits from the officiant or witnesses present at the ceremony
- Joint federal or state tax returns listing each other as spouse
- Joint bank statements, insurance policies, or retirement benefit designations
- Photographs, correspondence, or other contemporaneous documents referencing the marriage
To obtain a certified copy of the marriage record, you can request one from the county recorder’s office in the county where the license was issued. Under Family Code section 355, the recorder must provide certified copies upon request and payment of a nominal fee.
If you cannot locate a certified copy, file a petition with the probate court to allow substitute evidence. Include a declaration explaining your good-faith search for the original certificate and attach all supporting documents. The court will review the evidence under Probate Code section 13501, determine whether an allowance is necessary for your support, and rule on entitlement.
Failing to establish the marriage may delay or jeopardize your allowance claim. If the court finds the marriage invalid, you lose both the family allowance and elective share rights. Consider hiring a probate attorney to navigate evidentiary requirements and court procedures.
Helpful Hints
- Request a certified copy of your marriage record from the county recorder first—this is often the quickest proof.
- Gather multiple forms of alternative evidence to strengthen your petition.
- File your petition for family allowance within 120 days of the first creditor claims hearing per Probate Code section 9100.
- Keep detailed records of your search efforts for the missing certificate.
- Consult a probate attorney if the court challenges your evidence.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney for guidance on your situation.