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Borelli v. Brusseau - 12 Cal. App. 4th 647, 16 Cal. Rptr. 2d 16 (1993)

Rule:

A spouse is not entitled to compensation for support, apart from rights to community property and the like that arise from the marital relation itself. Personal performance of a personal duty created by the contract of marriage does not constitute a new consideration. 

Facts:

After suffering a stroke, Michael Borelli entered into an oral agreement with his wife, Hildegard L. Borelli, whereby he promised to leave her certain property in exchange for her agreement to care for him at home for the duration of his illness. Thus, avoiding the need for him to move to a nursing home. Although Hildegard performed her promise, Michael did not perform his. Instead, he left the bulk of his estate to his daughter upon his death. Hildegard sought specific performance of the Michael’s promise, and the trial court dismissed her complaint after sustaining the demurrer by the executor of the estate on the grounds that the agreement was without consideration, and was void as against public policy. Hildegard challenged the decision of the trial court.

Issue:

Was the oral agreement between the spouses against public policy, and was therefore void?

Answer:

Yes.

Conclusion:

The appellate court determined that the weight of statutory authority and case precedent held that Hildegard was obligated by the marriage contract to provide nursing-type care to an ill husband. Therefore the appellate court held that personal performance of a personal duty created by the contract of marriage did not constitute a new consideration supporting the indebtedness alleged by appellant. As such, the oral agreement entered into by the spouses prior to Michael’s demise was void as it was against public policy.

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