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Will there be a problem leasing to a spouse living separately from a partner but not legally separated or divorced?

Irvine, CA |

Here is an example. John and Mary are living separately but not legally separated or divorced. John signed a lease to an apartment and moved into it January. In February Mary and John patched their differences and Mary decided to move into the leased apartment with John. In April John died of an accident. Can Mary legally stay in the leased apartment since they are still considered married at the time of death ? If so is she bound by the lease agreement? What other complications can this bring?

Thank you.

Attorney Answers 3


  1. On the facts you state, there are no complications.

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  2. This is more of a landlord tenant issue. Who has a right to tenancy pursuant to the lease.

    Before you become concerned, I would have Mary explain the situation to the landlord, or if Mary continues to pay rent, then there is not likely to be a problem. The landlord probably just wants his or her rent. However, if the lease is signed by John, and the agreement pursuant to the lease says that only John will live in the residence, there could be a problem. The issue has nothing to do with whether or not they are married or separated, it is what was the contractual agreement, i.e. the lease. The lease is an independent contract between the landlord and the tenant, and it has nothing to do with the marriage.

    The information provided is for informational purposes only. It is not intended to be legal advice and does not form an attorney client relationship.


  3. If she did not sign, the lease is over and she is free to move or be evicted, she needs to talk to the landlord

    My name is Stephen R. Cohen and have practiced since 1974. I practice in Los Angeles and Orange County, CA. These answers do not create an attorney client relationship. My answers may offend I believe in telling the truth, I use common sense as well as the law. Other state's laws may differ.. There are a lot of really good attorneys on this site, I will do limited appearances which are preparation of court documents it is , less expensive. However generally I believe an attorney is better than none, but many will offer a free consultation and a face to face meeting generally will be better, I like my clients to write a short one page history of the fact and questions they have prior to meeting with them, so nothing is forgotten.