Surprise: Dad Married His Caretaker

Surprise: Dad Married His Caretaker

Advise clients on the benefits of a conservatorship 

Imagine the horror experienced by a family grieving the loss of a loved one after a long decline involving significant dementia, when a former caregiver informs them that, surprise, she and the recently deceased family member were married. The family might take comfort in the knowledge that their recently-lost loved one’s estate plan didn’t include the individual claiming to be a spouse and, besides, there’s substantial evidence that their elderly relative lacked the capacity to enter into a marriage. Well, this unfortunate family is about to be in for a terrible surprise. Some states contain a gaping hole in their statutory scheme to protect seniors from exploitation and abuse. For example, if the elderly relative lived in California, the family may have significant trouble if they try to void the marriage.   

Standing to Invalidate Marriage

In California, it’s possible to enter into a confidential marriage that can’t be invalidated on the basis that one of the spouses lacked capacity or was coerced into the marriage through undue influence or fraud.1 By the time the family finds out about the marriage, it’s too late to seek to invalidate it because only the spouse, who’s now deceased, has standing to challenge the marriage. This is because a marriage entered into when one party was of unsound mind, when consent to the marriage was obtained by fraud or by force or when either party was “physically incapable of entering the marriage state” can only be invalidated by an action filed during the lifetime of the victimized spouse.2

Omitted Spouse Doctrine

Okay, there’s no standing to contest the marriage, but what if the recently deceased senior held all of his assets in a trust, the terms of which don’t benefit the newly-discovered surviving spouse? California Probate Code (CPC) Section 21610 contains what’s known as the “omitted spouse doctrine,” and states that “if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments,” the omitted spouse is entitled to all community property and up to one half of the deceased spouse’s separate property.

Financial Elder Abuse

Getting more and more frustrated and concerned, the family realizes that the caregiver may have been taking money and property from the senior prior to their death and decides to sue her for financial elder abuse. The family has been informed that, pursuant to California Probate Code Section 259, “Any person shall be deemed to have predeceased a decedent” if it is proven by clear and convincing evidence that the surviving individual had committed physical abuse, neglect or financial abuse against the decedent. The effect of this finding is to treat the abuser as if she’s no longer alive, extinguishing her right to benefit from the victim’s estate.

Given the broad definition of financial elder abuse in California, which can be paraphrased as any wrongful deprivation of a property right from a senior, there may be strong evidence of at least some financial elder abuse at the hands of the surviving spouse. But, a finding that the abuser predeceased the victim still only provides limited relief to the family, because the wrongdoer is only deemed to have predeceased the decedent to the extent necessary to reimburse the estate for his or her abusive conduct.3 The larger the estate of the deceased spouse, the less benefit there actually is to having the surviving spouse deemed predeceased.  

Waiver or Conservatorship

So what can concerned family members do to protect their elderly loved ones, and themselves, from this sort of predatory marriage? In the past, one piece of advice to avoid such scenarios would be to make sure that all caregivers were the same sex as the senior they were caring for, but this advice is obsolete. To protect a loved one with diminished capacity from an exploitative marriage, there are only two options, neither of which is simple or particularly appealing: waiver or conservatorship.

CPC Section 141 allows a surviving spouse, before or during the marriage, to waive her rights to inherit from the other spouse, including a waiver of her right to an omitted spouse’s share. But the requirements for a valid execution of such a waiver, including that independent counsel represent the surviving spouse at the time of execution, make a waiver an impractical solution in the context of caregivers. The purpose of these pre- or post-nuptial waivers appears to relate more to dealings between two people with capacity knowingly entering a marriage and not towards providing protection for people with little or no capacity from exploitative marriages.

The only fail-safe means of preventing an exploitative marriage to a caregiver is to petition the court pursuant to CPC Section 811 for a determination that the senior receiving the care lacks the capacity to enter into marriage, which is generally sought as part of a conservatorship petition. Obtaining such a declaration would make any subsequent attempt to enter into a marriage with the senior null and void, but requires the moving party to overcome the presumption that all persons have the capacity to marry by providing evidence that the person is totally without understanding, is of unsound mind or possesses such substantial mental deficits that the court determines it appropriate to take away a fundamental right, the right to enter into marriage.

In addition, there are several ways to attack an exploitative marriage to a senior with little or no capacity based on technicalities in the execution of the marriage. For example, marriage licenses that weren’t properly executed and confidential marriages when it can’t be shown that the two people were “living together as spouses” at the time the marriage was executed (Family Code Section 500). It also may be possible in certain circumstances to show that the marriage was entered into for an illegal purpose, which would make the marriage “void” from the beginning rather than “voidable” on the basis of fraud or undue influence. Whether any of these technical measures apply is a case-by-case determination, and you should advise your clients to take all measures possible to avoid ever reaching that point.

Michael Fedalen is a Litigation Attorney at HFL Law Group, a Los Angeles-based law firm dedicated to protecting elders from financial abuse.


  1. Pryor v. Pryor, 177 Cal.App.4th 1448.
  2. California Probate Code Sections 2210, 2211(c-e).
  3. In re Estate of Dito, 190 Cal.App.4th 791.


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