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Unfortunately, is not uncommon for a caretaker to manipulate their elderly patients into marrying them to gain access to the finances of the elderly person. It used to be that with a legal marriage, the married person has certain automatic inheritance rights. New provisions to current California law have been signed to close the loopholes that have allowed this type of financial elder abuse, and are going into effect January 1, 2020. 

Changes to Assembly Bill 328

 

California Probate Code Section 21380 and Section 21382 Amendments

 

Before the recent amendments, California legislation prevented “donated transfers” to caretakers as they were presumed to be presented under the fraud of undue influence. However, the law excluded spouses, providing deceptive caretakers with a loophole to accept these gifts. 

 

Governor Gavin Newsom’s changes to this law, signed on June 26, 2019, change the presumption of fraud to include caretakers “who commenced a marriage, cohabitation or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided . . . if the donative transfer occurred, or the instrument was executed, less than six months after the marriage, cohabitation, or domestic partnership commenced.”

 

It is important to remember that the invalidity of the marriage and “gift” can be rebutted in the case that the caretaker can provide evidence of the legitimacy of their relationship and lack of cohesion. 

 

California Probate Code Section 21611 Amendment

 

The current California probate code is written under the assumption that in the event of one’s death, spouses generally intend to provide for loved ones another regardless of whether their will was updated to say so. This claim is referred to as an “omitted spouse” claim, leaving a portion of the will to their spouse. 

 

The new signed AB amends this section stating the “omitted spouse” rule does not apply if and when: 

 

(a) The decedent’s failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.

(c) The spouse made a valid agreement waiving the right to share in the decedent’s estate.

(d) (1) If both of the following apply:

(A) The spouse was a care custodian, as that term is defined in Section 21362, of the decedent who was a dependent adult, as that term is defined in Section 21366, and the marriage commenced while the care custodian provided services to the decedent, or within 90 days after those services were last provided to the decedent.

(B) The decedent died less than six months after the marriage commenced.

 

Meaning, caretakers would not be able to make an “omitted spouse” claim under these new guidelines. 

While all relationships have their uniqueness, the changes to AB 328 have been put into place to prevent further corporation, deception, and fraud that our elderly family members are so easily subjected to. If you believe your loved ones will have been left with undue influence, our probate attorneys specializing in financial elder abuse can be of help. Give us a call at 949-753-9100 to discuss your case.