New California case–elder abuse claim not prohibited by prior omitted spouse adjudication . . .

New California case–elder abuse claim not prohibited by prior omitted spouse adjudication . . .

By David W. Tate

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In Estate of Dito (California Court of Appeal, First Appellate District, Case No. A128921) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] the court addresses several important issues relating to financial elder abuse and an omitted spouse claim. Frank's wife Rosana died in 1995. Elenice had begun working for Frank and Rosana as a live in housekeeper in 1994. Two years after Rosana's death, at the age of 94 Frank married Elenice in 1997. Elenice was 28 when she married Frank. Frank and Elenice had a prenuptial agreement in which they both waived their rights to alimony, maintenance, and spousal support in the event of divorce or death. Frank died in December 2004.

Elenice petitioned for letters of administration and for her share of Frank's estate as an omitted spouse, and also claimed that the prenuptial agreement and the surviving spouse's waiver contained in it were unenforceable. Elenice also claimed that Frank's daughter Barbara was liable for financial elder abuse and should be deemed to have predeceased Frank pursuant to Prob. Code §259. Barbara also petitioned to administer Frank's estate and to admit his 1994 will to probate (the 1994 will identified Rosana as Frank's wife). Subsequently Frank's grandson Terrence (Barbara's son) petitioned to administer the estate whereupon Barbara withdrew her petition to administer the estate.

The probate court bifurcated the issues raised in the competing petitions. The first issue to be tried was whether Elenice was Frank's surviving spouse was entitled to receive a share of his estate as am omitted spouse pursuant to §21610 et seq., as well as whether the prenuptial agreement and the surviving spouse's waiver contained in it were enforceable. After bench trial, the probate court found that Elenice was Frank's surviving spouse pursuant to §21610 et seq. and was entitled to a share of Frank's estate as well as that both the prenuptial agreement and the surviving spouse's waiver in it were invalid and unenforceable. Those decisions were affirmed on an earlier appeal and are not at issue in this appeal.

After Terrence lost his appeal, Barbara initiated an action in the probate court, alleging that Elenice committed financial elder abuse against Frank and that as a result Elenice should be deemed to have predeceased Frank pursuant to §259. The court sustained Elenice's demurrer on res judicata grounds holding that Elenice's spousal share and her entitlement to receive a share of Frank's estate was already determined at the prior trial and that decision was final, and that all parties had a fair opportunity to litigate the issue and Barbara's attempt to plead the same spousal property entitlement under a theory of financial elder abuse was barred and should have been raised at trial. Barbara appealed.

The court of appeal in the current case reversed, holding that Barbara's petition was not barred by res judicata, but affirmed the granting of the demurrer on other grounds, with leave to amend. The court held that the primary right at issue in the former proceeding was Elenice's personal right under §21610 to receive a share of Frank's estate as an omitted spouse, whereas the primary right at issue in Barbara's petition was Frank's right not to be abused or defrauded which was a primary right that belonged to Frank and to the people who were entitled to assert that right.

The court held that the new financial elder abuse allegations had no bearing on the determination whether Elenice was an omitted spouse entitled to receive a share of Frank's estate pursuant to §21610, et seq. Section 21610 specifies that an omitted spouse shall be entitled to a share of the estate unless one or more of the exceptions in §21611 applies. A finding of elder abuse is not one of the listed exceptions. Further, even if the elder abuse issue had been raised in the prior proceeding, a determination that Elenice committed financial elder abuse would not be a proper basis for denying her entitlement to a share of the estate under §21610 et seq.

Barbara's petition also sought a determination that Elenice was deemed to have predeceased Frank pursuant to §259 as a result of the elder abuse. The primary right at issue under §259 was also the right of Frank's right to be free from abuse. Section 259 simply provided a remedy for that primary right.  A §259 claim is distinct from a claim that an omitted spouse is entitled to a share of the estate notwithstanding the fact that it seeks a result that may appear to be contrary to the prior determination by the probate court that Elenice was entitled to a share of Frank's estate.

"The parties and the court below appear to be operating under the assumption that a person found liable for elder abuse is deemed to have predeceased the decedent for purposes of any entitlement to property, interests, and benefits the abuser would otherwise receive by reason of the decedent's death. While that may be the practical effect of section 259 in some cases, the statute does not necessarily disinherit an abuser entirely but rather restricts the abuser's right to benefit from his or her abusive conduct."

"Section 259, subdivision (a) provides in pertinent part that "'[a]ny person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c)' " where it is proven that the person is liable for elder abuse of the decedent, acted in bad faith, and was reckless, oppressive, fraudulent, or malicious in the commission of the abuse. (Italics added.) Subdivision (c), in turn, provides in relevant part that "'[a]ny person found liable under subdivision (a)... shall not (1) receive any property, damages, or costs that are awarded to the decedent's estate in an action described in subdivision (a)... , whether that person's entitlement is under a will, a trust, or the laws of intestacy....'"

Section 259 does not necessarily entirely disinherit an abuser but rather restricts the abuser's right to benefit from her abusive conduct.  "Thus, a person found liable under subdivision (a) of section 259 is deemed to have predeceased the decedent only to the extent the person would have been entitled through a will, trust, or laws of intestacy to receive a distribution of the damages and costs the person is found to be liable to pay to the estate as a result of the abuse."  "Section 259 does not necessarily eliminate the abuser's entitlement to a share of the estate; it simply restricts the value of the estate to which the abuser's percentage share is applied and prevents that person from benefiting from his or her own wrongful conduct."  Barbara's §259 claim did not affect or threaten the determination that Elenice was a surviving omitted spouse under §21610. Elenice was still entitled to her share of Frank's estate as specified in §21610, although she was not allowed to share in any damages and costs that she could be liable to pay to the estate as a result of her alleged elder abuse.  The court also distinguished Estate of Lowrie (2004) 118 Cal. App. 4th 220, 225 [enhanced version / unenhanced version] (stating that Estate of Lowrie did not address the scope of the remedy under section 259 but instead focused on the issue of standing; therefore, the court's general description of the statute's effect is not authority for the proposition that section 259 operates to completely disinherit a person found liable for elder abuse).

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DAVID W. TATE, ESQ.

E-mail: tateatty@yahoo.com; Website: http://davidtate.us

Blogs: http://davidtate.wordpress.com; http://californiaestatetrust.wordpress.com

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