Caregivers of a dependent adult hold a position of trust. However, a scheming caregiver may view a dependent adult as an easy target. The California legislature has cracked down on exploitive caregivers who marry a dependent adult. California Assembly Bill 328 creates a presumption of undue influence against a “care custodian” (a caregiver who provides health or social services to a dependent adult) who: (1) receives transfers or execution of instrument after marrying a dependent adult, and (2) make “omitted spouse” claims. A “dependent adult” is an adult of any age who cannot provide properly for his or her basic needs or who has difficulty managing his or her financial resources or resisting fraud or undue influence. Assembly Bill 328 goes into effect on January 1, 2020.
Caregivers Who Marry A Dependent Adult And Receive Transfers or Instrument
California law has presumed that an instrument signed by a dependent adult benefiting a caregiver is presumptively invalid as the result of undue influence or fraud. However, spouses, domestic partners, and cohabitants have been exempted from this presumption. This resulted in a loophole: a California caregiver could marry a dependent adult and then any beneficial instrument or transfer would not be presumptively invalid.
Assembly Bill 328 fixes this loophole, stating:
This bill would additionally subject to the above-described presumption a gift made to a care custodian 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 to the dependent adult, if the donative transfer occurred, or the instrument was executed, less than 6 months after the marriage, cohabitation, or domestic partnership commenced.
Caregivers Who Marry A Dependent Adult And Make An Omitted Spouse Claim
California law has provided that if a decedent does not provide by testamentary instrument for the surviving spouse who married the decedent after the execution of the testamentary instrument, the omitted spouse receives part of decedent’s estate. Specifically, the omitted spouse receives ½ of decedent’s community and quasi-community property and a share of the separate property (unless the surviving spouse has agreed to waive these rights). Assembly Bill 328 carves out a caregiver exception:
This bill would further prohibit a surviving spouse from receiving a share of the decedent’s estate as described above if the spouse was a care custodian of the decedent who was a dependent adult 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, and the decedent died less than 6 months after the marriage commenced, unless the spouse can prove by clear and convincing evidence that the marriage was not the product of fraud or undue influence.
A Six-Month Time Frame
Notably, there is a six-month time frame that applies. A caregiver can rebut the presumption that a transfer made or an instrument executed that does so within six months of the caregiver marrying or cohabitating with a dependent adult is the product of fraud and undue influence. The caregiver can rebut the presumption with clear and convincing evidence that there was no fraud or undue influence. Caregivers who marry a dependent adult cannot make an “omitted spouse” claim if the dependent adult dies less than six months after the marriage, unless the caregiver can prove with clear and convincing evidence that the marriage was not the product of fraud or undue influence.
California Assembly Bill 328 amends sections 21380, 21382, and 21611 of the California Probate Code.