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Oral Promise to Make a Will to Benefit Non-Marital Partner

In 1976 the Supreme Court of California recognized that contracts arising from non-marital domestic relationships are enforceable even if they don’t fall within the community property laws governing traditional marriage. This principle extends to cases where one unmarried partner promises to provide for the other in his or her estate plan. A “contract to make a will” is valid under a 2000 amendment to the California Probate Code, even if the agreement is only made orally, provided there is clear and convincing evidence of the deceased person’s intentions.

Note that contracts to make a will are not limited to domestic partners. For instance, a father might promise to leave part of his estate to a daughter if she moves in with him. If she does so and the father later dies without making a will, the daughter could pursue a breach of contract claim against his estate.

In a case where one unmarried partner dies without fulfilling an oral contract to make a will for the benefit of the other, the survivor may face resistance from the deceased person’s family, which can lead to costly litigation. The laws governing these types of cases are complicated in California, as demonstrated by a recent decision by the state’s court of appeals.

An Oral Promise Leads to Litigation and Procedural Confusion

James Humpert and Richard Allen were longtime partners. They neither registered as domestic partners under California law nor married when same-sex unions were briefly permitted in the state in 2008. Humpert died in 2010 without leaving a will. Allen claimed Humpert had orally promised that Allen “would be taken care of” in the event of Humpert’s death. But there was no written documentation of this promise.

Allen tried to secure appointment as executor of Humpert’s estate, but Humpert’s sister, Edith Stoddard, also a filed a petition and she prevailed under state law. Allen then filed a creditor’s claim against Humpert’s estate based on the promise he “would be taken care of.” Stoddard, as executor, denied the claim. Allen sued.

A disagreement arose as to whether Allen filed his lawsuit in a timely manner. California law is confusing on this point. Under the state’s Code of Civil Procedure, Allen had one year from the date of Humpert’s death to file a lawsuit arising from the alleged breach of contract to make a will. Allen more than met this deadline. The estate, however, argued that under the Probate Code, Allen had to file suit within 90 days of Stoddard rejecting his creditor’s claim. Due to a possibly misleading form, Allen’s lawsuit came 91 days after the estate’s rejection.

A three-judge panel of the California Court of Appeals in Santa Ana ultimately had to figure out which rule applied. The court decided in favor of the rule adopted more recently and that applied to a narrower group of cases. That turned out to be the one-year rule, meaning Allen could proceed with his lawsuit.

Don’t Rely on Oral Promises

It remains to be seen whether Richard Allen can prove the existence of a binding oral contract between him and his late partner. For the rest of us, the best way to avoid a similar situation is not to rely on oral promises in the first place. If you intend to provide for a partner or other loved one after your death, do so in writing after consulting with an experienced California estate planning attorney. To examine all of your estate planning options, contact the Law Office of Scott C. Soady in San Diego at 1-858-618-5510.

Related Links

Does a Domestic Partnership Agreement Apply After Marriage in Probate?
Estate Planning for Registered Domestic Partners

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