Exploitation of the elderly is a serious problem in our country. Many incidents involve caregivers that take advantage of the vulnerability of the individuals they are caring for. The California Legislature has closed loopholes in its Probate Code that allows abusive caregivers to marry their way into a dependent adult’s wealth. Assembly Bill 328, signed by California Governor Newsom on June 26, 2019, and effective on January 1, 2020, creates a presumption of undue influence that applies in two scenarios.
California law previously presumed that a dependent adult who signs an instrument benefiting a “care custodian” (i.e., a caregiver who provides health or social services to a dependent adult) does so as a result of fraud or undue influence such that the instrument is presumptively invalid. However, the law exempted spouses, domestic partners, and cohabitants who receive gifts from dependent adults. The exclusion permitted an opportunistic care custodian to marry a dependent adult so as to avoid the presumption of invalidity. Assembly Bill 328 amends section 21611 of the California Statutes so that care custodians who marry dependent adults cannot make “omitted spouse” claims if the dependent adult dies less than six months after the marriage occurred. Legislation of this nature is needed in all US states and territories. Talk to your state representatives to promote it.
