September 27, 2007

Ask The Lawyer

Want to get married? You must have a marriage license

This week's question:
My father is very sick and in the hospital. I really don’t know if he will make it or not. One of his last wishes is to marry his longtime girlfriend, whom he has known for many years after my mother died. The problem is that he is too ill to get a marriage license. Is there any way he can be excused for not having a marriage license and go ahead and marry his sweetheart? He is just too sick to go anywhere.

Kenny K.
Almaden Valley


Dear Kenny:
Very interesting question, Kenny, but I believe your father will need to get a marriage license to legally marry his sweetheart.

This question came up in a case here in Santa Clara County a few years ago. The case is entitled Estate of DePasse, and it was decided in March of 2002.

In the Estate of DePasse case, Jack and Derrel had lived together in Saratoga for some period of time. Derrel had accumulated a sizable estate but unfortunately became very seriously ill.

While Derrel was terminally ill and a patient in Stanford University Hospital, the couple decided to get married. Although aware that a marriage license was required, the couple did not obtain a marriage license because of Derrel’s illness and imminent death.

At the time she was hospitalized, Derrel owned a sizable estate consisting of over $4.5 million in liquid assets, 50 pieces of artwork worth $500,000 to $800,000, plus furniture, books, jewelry, household goods and other items of personal property. Most of the items were located in Jack’s home in Saratoga.

One day before she died, Derrel and Jack were married by the hospital chaplain in the Stanford University Medical Center. It was undisputed that they had no marriage license.

Two days before the marriage ceremony, Derrel executed a handwritten (holographic) will naming her brother as executor of her estate. She also stated that she wanted her artwork to go to one of three museums, either the American Museum of Folk Art in New York City, the National Museum of American Art in Washington, D.C., or the Philadelphia Art Institute. She also directed her brother to set up endowment funds for two museums for 20th Century American folk art.

The day after the marriage ceremony, Derrel died at the age of 52. She left as survivors her brother John DePasse, her mother, Josephine DePasse, and her new husband of one day, Jack Harris.

Of course, there was a court contest between the family members. Jack maintained that he was the surviving spouse and therefore entitled to much of Derrel’s property as the surviving spouse and because she gave him many gifts during their time together. The DePasse family argued that the marriage was invalid because the couple admittedly had obtained no marriage license and therefore, Jack had no rights as a surviving spouse.

The court of appeal for the Sixth District here in San Jose affirmed the trial court and held that the issuance of a marriage license is a mandatory requirement for a valid marriage in California.

As stated by the court of appeal, the California Family Code provides for a mandatory process for a legal marriage, including Family Code §§306, 350, and 421. All of these provisions use the term “shall.” Obtaining a marriage license is mandatory, not discretionary.

The court of appeal also held that the “putative spouse” doctrine did not help Jack. This is a doctrine that basically states that an innocent spouse may be treated as a “putative” or apparent spouse if a party has a reasonably objective good faith belief that the marriage is valid. However, this did not apply to Jack since he knew they were supposed to get a marriage license. In fact, Jack acknowledged that the hospital chaplain told Jack and Derrel that they would need a marriage license.

You can read the Estate of DePasse case and the California Family Code sections yourself by going online to your favorite search engine. The California Court of Appeal case citation is 97 Cal.App.4 118 Cal.Rptr.2d 143 and it was decided in 2002. For any interpretation of this case as it may apply to your own particular situation, of course you will need to see your own attorney for advice and guidance.

Best wishes with this difficult situation, Kenny. I hope it all works out well for you and your father.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.