Marrying Into Elder Abuse

By Ellen McKissock, Esq.^*

Senator Ralph Dills (1910-2002) served 43 years in the Assembly and Senate, making him the longest standing lawmaker in California history. Dills also sat as a judge for 17 years. Dills championed legislation to protect elders during his years of service. Sadly, Dills became a victim of the abuse he sought to curtail.

Dills married Elizabeth Ging Lee in 1970. When Elizabeth died in 2000, Dills lost his soul mate. Dills' stepdaughter, Wendi, lived with the couple before her mother's death and acted as caregiver to Dills (who then suffered from Alzheimer's Disease). Shortly after her mother's death, Wendi began wearing her mother's clothes and perfume. She then divorced her own financially troubled husband, took her stepfather to Reno and married him. The marriage was kept a secret until one day, when Dills was in the hospital, Dills' sons asked him why he was giving so much money to Wendi. Dills responded, "I think she's my wife." The Dills' estate plan had already provided for Wendi. Why did Wendi marry Dills?

Marrying an elder has become the latest form of perpetrating elder financial abuse. Enticing a lonely elder to marry with the promise of constant companionship may be far easier than unduly influencing him to change his estate plan. Marriage is easy to accomplish, is nearly impossible to challenge, and is not punishable under any law. Marriage can entitle an abuser to a statutory share of the elder's estate at death as an omitted spouse or an intestate heir or a financial settlement on dissolution. Creating a remedy for this new form of elder financial abuse is problematic because any solution must balance the elder's right to choose a companion and spend his money as he pleases against any well-intended effort to protect him.

In the 1980s and 1990s, the California Legislature passed laws to protect elders from financial predators. Recognizing that elders constitute a significant and identifiable segment of the population more subject to risk of abuse, the Legislature passed the Elder Abuse and Dependent Adult Civil Protection Act in 1982 (herein "Elder Financial Abuse Statute").¹ A decade later, the first prohibited transferee statute was passed, invalidating testamentary transfers to caregivers and estate plan drafters under most circumstances.² These statutes operate as deterrents to the greedy. Although it may be difficult for a loved one to gain legal standing to protect an elder under these statutes, at least the avenues exist.

With marriage, there is very little a family member or a conservator can do to protect an elder from the rapacious spouse or fiancee. Further, a marriage to such a person may even be in the elder's interest. If the elder finds companionship, happiness, and good care in a marriage (even a marriage to a financially abusive spouse), should a family member be able to interfere with that marriage simply to protect an anticipated inheritance? However, when a spouse uses the institution of marriage as a platform for financial abuse, taking the elder's assets while he is alive, manipulating the elder's estate plan, and failing to provide care or companionship to the elder, such interference may be warranted. Unfortunately, as the law exists in California today, it is very difficult to protect an elder from "marriage abuse," and for that reason, it has become the option of choice for some elder financial abusers.

With the 1982 passage of the Elder Financial Abuse Statute, predators now face stiff penalties if found liable for elder abuse. Prosecution under that statute is difficult only because the elder holds the cause of action against the abuser and often cannot be convinced to challenge that abuser. However, a duly appointed conservator can bring an elder financial abuse claim on behalf of the elder during the elder's lifetime.³ By contrast, a marriage is more difficult to challenge. Ending a marriage is a right personal to the elder that neither a family member nor a conservator can assert.⁴

Proving elder financial abuse is not difficult once standing is achieved. An abuser is liable under the Elder Financial Abuse Statute merely by taking an elder's property with knowledge that the taking will harm the elder.⁵ While proof of undue influence or intent to defraud is also a basis for elder financial abuse, neither is required to establish liability.⁶ Once elder financial abuse is proven, the abuser is liable for compensatory damages, attorney's fees and costs.⁷ Where fraud, recklessness, or malice is proven, punitive damages are recoverable.⁸ Thus, elder financial abuse is not difficult to prove and the penalties are high.

Marrying the elder is less risky. As discussed below, not only is it difficult to undo a marriage, but the abusive spouse has wide access to the elder spouse's assets, both during life and at death.

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The prohibited transferee statute passed in 1993 rendered invalid any donative transfer made to the drafter of a testamentary instrument or a caregiver of the donor unless a certificate of independent review was obtained.⁹ The original prohibited transferee statute has since been repealed and replaced by a new prohibited transferee statute in Probate Code section 21380.¹⁰

Under the new prohibited transferee statute, the presumption remains that a donative transfer to the drafter of a testamentary instrument is invalid. That presumption is conclusive and not rebuttable.¹¹ However, a donative transfer to a care custodian or fiduciary is no longer presumed invalid; rather, a presumption of fraud or undue influence arises, rebuttable by clear and convincing evidence that the transfer was not the product of fraud or undue influence.¹²

The definition of a care custodian is someone who is paid for providing health or social services to a dependent adult.¹³ An unpaid person is considered a care custodian if they have not had a relationship with the elder for at least 90 days before caring for the elder, or for six months before the elder's death, or if they met the elder while he was in hospice.¹⁴ Where the recipient of a donative transfer under an estate plan is a care custodian, the fraud presumption only arises if the instrument was executed while the care custodian was providing services, or within 90 days before or after the services were provided.¹⁵Thus, an elder can make a bequest to a care custodian that has left his employ, so long as he waits more than 90 days. The logic behind this 90-day period is that a former care custodian, replaced by another, likely loses the ability to unduly influence an elder to change his estate plan.

While the new prohibited transferee statute makes it difficult for care custodians to become beneficiaries under donative instruments, such difficulties all but disappear if the care custodian marries the elder. The new prohibited transferee statute excludes from its purview donative transfers to cohabitants¹⁶ of the elder or a person related by blood or "affinity." Affinity is defined as a spouse or domestic partner.¹⁷ Therefore, the fraud presumption never arises if the a donative transfer is to a spouse or domestic partner of the elder.¹⁸ By contrast, if an elder signs a testamentary document that provides for a care custodian with whom the elder currently lives, the gift to the care custodian will be presumed to be the product of fraud or undue influence. The care custodian need only marry the elder to become related by "affinity" and avoid this presumption.

In instances where the abuser is not a care custodian, he must still get past the conscientious estate planner to have himself named as a beneficiary under a testamentary instrument. The Elder Financial Abuse Statute defines a "taking" as depriving an elder of a property right by means of a testamentary bequest.¹⁹ A person who "assists" in the taking of an elder's property right (such as an estate planner creating a testamentary instrument) can be liable for elder financial abuse.²⁰ The careful estate planner, aware that an elder may be prey to the undue influence of an abuser, will refuse to assist in creating the testamentary instrument. An abusive spouse, however, who is entitled to receive an elder spouse's assets upon the elder's death by operation of law, does not have to overcome the resistance of an astute estate planning attorney, potentially making it easier for the wrongdoer to inherit through marriage than through an estate plan.

The law presumes that all persons have the capacity to make decisions, including the decision to marry, and to be responsible for their acts or decisions.²¹ That presumption is rebuttable if a judicial determination is made that a person suffers from a deficit in at least one of the mental functions listed in Probate Code section 811. Courts apply a sliding scale for mental capacity based upon the complexity of the act or decision in question.²²

The mental capacity required for a person to marry is low. Courts have held that an incompetent person, including a person subject to a conservatorship, is capable of entering into a valid marriage.²³ Courts further have held that a person need only understand the duties and obligations of marriage to marry.²⁴ There is scant legal authority on just what constitutes the "duties and obligations" of marriage, but one court granted an annulment for failure to live with the spouse, provide companionship, and make the marriage known to friends.²⁵

The recent case of In re Marriage of Greenway justified the lower level...