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Spousal Undue Influence In California

By Andrew Gold, Esq.

Undue influence is a common ground to challenge a will or trust.  California law has made an undue influence challenge against a spouse just a little tougher for a will challenger with California Probate Code 21385, effective January 1, 2020.

Can A Spouse Commit Undue Influence?

Yes.  A spouse can commit undue influence.  However, many states have enacted laws that make it more difficult for a challenger to mount an undue influence case against a spouse by removing the legal ability to raise the presumption of undue influence.  California is the most recent state to codify this law.  Florida has had it in place for some time.

Spousal Undue Influence In California

In California, a presumption of undue influence arises if a party shows that:

  • There was a confidential relationship between the testator and the influencer;
  • The influencer actively procured the will or other testamentary document; and,
  • The influencer obtained undue benefit from the testamentary document.

When the presumption of undue influence is raised, the alleged influencer must show that the testator acted freely and voluntarily, with full knowledge of all the facts, and with a complete understanding of the effect of the transaction.

California Law Now Bars The Presumption of Undue Influence Against A Surviving Spouse

Effective January 1, 2020, the presumption of undue influence can no longer be raised with respect to surviving spouses in California.

California Probate Code section 21385 states:

(a) An at-death transfer, as defined in Section 21104, between spouses by will, revocable trust, beneficiary form, or other instrument is not subject to Section 721 of the Family Code or any presumptions of undue influence created by that section.

(b) This section does not limit the application of any other statutory or common law presumptions of undue influence that may apply to an at-death transfer between spouses.

Section 721(b) of the California Family Code states, in pertinent part:

Except as provided in Sections 143, 144, 146, 16040, 16047, and 21385 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.

Section 721 now contains a cross-reference to section 21385 of the California Probate Code.  However, under prior law, section 721 applied to create an undue influence presumption if a surviving spouse was left with substantial assets and property as the result of a spouse’s death.

Why Bar The Presumption Of Undue Influence Against Surviving Spouses?

Without a bar on the presumption, for a surviving spouse beneficiary, the presumption of undue influence could almost always be raised.  A spouse has a confidential relationship with their spouse, and is usually involved in the estate planning process.  Therefore, even if there was nothing undue about the spouse’s participation in the estate planning process, the presumption of undue influence was raised.  This places a heavy burden on the surviving spouse.

In contrast, in a will challenge against a non-spouse, the petitioner would have to provide evidence to raise the presumption of undue influence.  Therefore, spouse beneficiaries were treated with more suspicion and with a presumption going against them in an undue influence will contest, while other beneficiaries were not automatically cloaked with the presumption.

Other states already have implemented law permanently barring surviving spouses from ever triggering the presumption of undue influence.  Florida has explained the rationale behind this presumption as follows:

The holding of Goertner v. Gardiner, 125 Fla. 477, 170 So. 112, reh. den., 126 Fla. 412, 170 So. 844 (1936), that the confidential relationship which exists between a husband and wife is not one which may be considered in the law governing will contests, accordIn re Estate of Knight, 108 So.2d 629 (Fla. 1st DCA 1959), is, in our view, still extant. Since a confidential relationship is one necessary requirement which must be met before a presumption of undue influence arises, under Goertner the presumption cannot arise in the case of a husband and wife. Were the confidential relationship between spouses not exempted from that presumption of undue influence rule, the presumption would arise in nearly every case in which the spouse is a substantial beneficiary, since the required active procurement would almost always be present. One would naturally expect to find a spouse to be present at the execution of the will, present when the testator expresses a desire to make a will, knowledgeable about the contents of the will prior to its execution, involved in its safekeeping, and perhaps even involved in the recommendation of an attorney-preparer and consultation with an attorney-preparer. These, of course, are among the criteria for determining if one is engaged in active procurement.

See Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981).

Spouses are the natural confidants and protectors of each other.  If the presumption of undue influence could be raised with respect to a spouse, it would likely be raised in every will contest, putting spouses at an unfair advantage.  The lack of the ability to raise the presumption does not make a will contest against a surviving spouse impossible to win in California, it just makes it more difficult.

Florida, which has had the ban on the presumption of undue influence against a surviving spouse for almost a century, has seen successful will contests against a surviving spouse, which we have written about here.  California probate litigators can look to Florida’s cases as guidance for how to litigate a will contest without the aid of the presumption of undue influence against a surviving spouse.

Andrew S. Gold, Esq.

Probate & Trust Litigation

Hourly & Contingency Fees Available


(650) 450-9600



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