Legislative Proposal

11355 West Olympic Boulevard, Suite 100

Los Angeles, CA 90064-1614

(0) 310/996-2699 (F) 310/996-2695

Principal Contact: Marc Hankin

Digest: Summary of existing law (statutory and/or as interpreted by the courts) and a very brief description of what the bill would do.

Existing law recognizes that a person may lack the capacity to marry, and that a marriage by a person lacking of the capacity to marry may be annulled. However, existing statutory law appears to indicate that a marriage’s validity made not be contested after the death of a spouse, even if the first spouse to die was incompetent to marry at the time of the alleged marriage, and even if the “marriage” was a fraud on the incompetent “spouse,” and even if the incompetent “spouse,” was totally without understanding at the time of the “marriage.”

The existing legal scheme’s shortcomings has served as an incentive for the growing cottage industry of elder abusers to marry deteriorating elders, to isolate them, and frequently to keep the marriage a secret until after the death of the victim. The anticipated windfall from the inheritance also serves as an incentive to neglect the incompetent victim’s health, so as to accelerate the inheritance.

Application: How will this bill remedy the problem or deficiency in existing law?

This proposal will empower courts to invalidate certain marriages even after the death of the victim, and provide procedural safeguards to protect valid marriages.

Illustrations: Give at least one specific example, preferably drawn from real life, of how this proposal would solve the problem described above.

A practical nurse was hired to take care of a stroke victim and to protect him from harm. The stroke victim lacked the capacity to marry or even to sign a will. Instead of protecting him from harm, she took him to Las Vegas where they were “married,” and she thereafter claimed that everything was community property. A woman was prosecuted successfully for various forms of elder abuse, which led to the victim’s death. When he died without a will disinheriting her (having lacked testamentary capacity at all times relevant), she claimed that she was his pre-terminated heir. This proposal would enable the court to annul the marriage, and thereby render the victimizer’s inheritance void.

Documentation: Does documentary evidence (e.g., studies, reports, statistics or facts) exist which supports your conclusion that there is a problem? If so, please list. Be as specific as possible and attach major sources.

There have been many newspaper articles about elder abuse, including the growing cottage industry of phony marriages to incompetent victims.

History: Describe any similar proposals considered by the State Bar or the Legislature.

None known.

Pending Litigation: List any litigation currently pending of which you are aware which would be impacted by this legislation if enacted.

None known.

Likely Support/Opposition: Which major interest groups, organizations, professional associations, governmental agencies, key lawmakers, etc. are likely to support this proposal? Which are likely to oppose it? Why? What arguments will be made against it?

Senior citizen groups will likely support this proposal because it seeks to protect the elderly. It is doubtful that any organization will oppose this legislation.

Fiscal Impact: How much will it cost? How will these costs be funded?

The legislation is unlikely to have any fiscal Impact.

Germaneness: (1) Is the subject matter of the bill necessarily or reasonably related to the regulation of the legal profession or improvement of the quality of legal services? or (2) Does the matter require the special knowledge, training, experience or technical expertise of the section? Please discuss how and why.

The subject matter is directly related to the practice of the members of the Estate Planning, Trust and Probate Law Section. The Section has the particular expertise pertaining to the management of the affairs of incompetent persons.

SECTION 1. [1]UNANNOTATED VERSION

Family Code section 2202[2] is enacted to read as follows:

A purported marriage by a person totally without understanding is void ab initio.

Family Code section 2210[3] is amended to read as follows:

A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:

(a) The party who commences the proceeding or on whose behalf the proceeding is commenced was without the capability of consenting to the marriage as provided in Section 301 or 302, unless, after attaining the age of consent, the party for any time freely cohabited

with the other as husband and wife.

(b) The husband or wife of either party was living and the marriage with that husband or wife was then in force and that husband or wife (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.

(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as husband and wife. ~~The capacity of a party to marry is governed by Part 17 (commencing with section 810) of Division 2 of the Probate Code.~~

(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full

knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.

(e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as husband or wife.

(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.

Family Code section 2211[4] is amended to read as follows:

A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:

(a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:

(1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.

(2) A parent, guardian, conservator, or other person having charge of the underaged male or female, at any time before the married minor has arrived at the age of legal consent.

(b) For causes mentioned in subdivision (b) of Section 2210, by either of the following:

(1) Either party during the life of the other.

(2) The former husband or wife.

~~(c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.~~

(1) at any time before the death of either party, by the party injured, or by a relative or conservator of the person or the estate of the party of unsound mind, or

(2) after the death of the party injured, by the personal representative of the estate of the party injured, in accordance with the provisions of Part 18 (commencing with section 820) of Division 2 of the Probate Code.

(d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years

after the discovery of the facts constituting the fraud.

(e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years

after the marriage.

(f) For causes mentioned in subdivision (f) of Section 2210, by the injured party, within four years after the marriage.

Family Code section 2212[5] is amended to read as follows:

(a) The effect of a judgment of nullity of marriage is to restore the parties to the status of unmarried persons.

(b) A judgment of nullity of marriage is conclusive only as to the parties to the proceeding and those claiming under them.

(c) In the case of a marriage determined to be a nullity for causes mentioned in subdivisions (c), (d) or (e) of section 2210, there shall be a rebuttable presumption affecting the burden of proof that any transfer from the party injured or determined to have been of unsound mind, to or for the benefit of the other party, or arranged for the benefit of that other party, was invalid and void ab initio, on the same grounds as the marriage was determined to be nullity.

Family Code section 2330 [6] is amended to read as follows:

(a) A proceeding for dissolution of marriage or for legal separation of the parties is commenced by filing a petition entitled “In re the marriage of ____ and ____” which shall state whether it is a petition for dissolution of the marriage or for legal separation of the parties.

(b) In a proceeding for dissolution of marriage or for legal separation of the parties, the petition shall set forth among other matters, as nearly as can be ascertained, the following facts:

(1) The state or country in which the parties were married.

(2) The date of marriage.

(3) The date of separation.

(4) The number of years from marriage to separation.

(5) The number of children of the marriage, if any, and if none a statement of that fact.

(6) The age and birth date of each minor child of the marriage.

(7) The social security numbers of the husband and wife, if available, and if not available, a statement to that effect.

(c) A petition for dissolution or legal separation may be filed or maintained by a conservator or a guardian ad litem, provided that the court appointing the conservator or guardian ad litem has first determined that the proposed action is in the best interests of the conservatee or incapacitated person. In determining whether to authorize or require the proposed action, the court shall take into consideration all the relevant circumstances, which may include but are not limited to the applicable factors set forth in Probate Code section 2583.

THE FOLLOWING (INTERLINEATED) NEW SECTION IS WITHDRAWN FROM THIS PROPOSAL:

~~Probate Code Section 814 is enacted to read as follows:~~

(a) A person lacks the capacity to enter into the contract of marriage, unless the person has the ability to communicate, verbally, or by any other means, the decision to marry, and to understand and appreciate, all of the following:

~~(1) The person’s rights, duties, and responsibilities created by, or affected by the marriage.~~

~~(2) The probable consequences for the person and, where appropriate, the family and heirs of the person affected by the decision.~~

~~(3) The significant risks, benefits, and reasonable alternatives involved in the decision.~~

(b) In determining whether a person has the capacity to marry, a court shall consider all evidence material under the person’s circumstances, including but not limited to the person’s ability to understand and appreciate the following concepts :

~~(1)~~ ~~Property rights,~~

~~(2)~~ ~~Spousal duties and obligations,~~

~~(3)~~ ~~The impact of marriage on heirs, and~~

(4) ~~Parental obligations.~~

Part 18 of Division 2 of the Probate Code, commencing with section 820, is enacted to read as follows:

Probate Code section 820[7] is enacted to read as follows:

(a) A marriage entered may be adjudged a nullity after the death of a party, for causes mentioned in subdivisions (c) [unsound mind], (d) [fraud], or (e) [force] of section 2210, if:

(1) the marriage took place within two years before the date of death, or

(2) the marriage occurred within two years before the later of the following events:

(A) The date of the appointment of a temporary or general conservator (whichever occurred earlier) of person or the estate or both, which occurred within one year of the date of death;

(B) The date notice of the marriage was given to the conservator, where the notice satisfied the requirements of section 1903, and where such notice was given within one year of the date of death.

(b) A marriage may not be adjudged a nullity under this subdivision if the marriage could not have been so adjudged prior to the death of the decedent in a proceeding under Family Code section 2210.

(c) The appointment of a temporary conservator shall constitute the appointment of a conservator for the purposes of this section.

Probate Code section 821[8] is enacted to read as follows:

An action for a judgment of nullity shall be brought within one year from the date of appointment of a personal representative with general powers or six months from the date that the personal representative has actual knowledge of the existence of the marriage between the decedent and the spouse, whichever is last.

Probate Code section 822[9] is enacted to read as follows:

A spouse whose marriage to a decedent was annulled for causes mentioned in subdivisions (c) [unsound mind], (d) [fraud], or (e) [force] of section 2210 shall be treated as having predeceased the decedent without issue for all purposes, and the spouse of the decedent shall be deemed to be a person described in paragraphs (1) through (6) of subdivision (a) of section 21350 for the purpose of determining the validity of any provision or provisions of an instrument which was executed by the decedent after the date of the marriage adjudged a nullity, purporting to make a donative transfer from the decedent. However a provision or provisions of an instrument which was executed by the decedent after the date of the marriage adjudged a nullity, and which purported to make a donative transfer from the decedent may be determined to be valid upon proof by clear and convincing evidence that the requirements of section 21351 are met.

Probate Code section 823[10] is enacted to read as follows:

A petition for a judgment of nullity, for causes mentioned in subdivisions (c) [unsound mind], (d) [fraud], or (e) [force] of section 2210, may not be deemed to violate a no contest clause, within the meaning of that term as set forth in section 21300, unless the court determines that the petition was filed in bad faith.

Probate Code section 824[11] is enacted to read as follow as follows:

If a marriage is annulled for causes mentioned in subdivisions (c) [unsound mind], (d) [fraud], or (e) [force] of section 2210, any transfer, which [a] was from the spouse determined to have been of unsound mind within the meaning of subdivision (c) of Family Code section 2210, or whose consent was obtained under the circumstances set forth in subdivisions (d) [fraud], or (e) [force] of section 2210, and [b] was made or arranged for the benefit of the other spouse, shall be determined to be invalid on the same grounds as the marriage was marriage adjudged a nullity.

Probate Code section 1900 [12] is enacted to read as follows:

(1) The Legislature finds and declares that there is an epidemic of financial abuse of elders and dependent adults.

(2) The Legislature finds and declares that there is a growing cottage industry of victimizers who:

(A) prey on mentally impaired persons for the purpose of fraudulently acquiring their property,

(B) enter into purported marriage ceremonies with demented elders or dependent adults for the purpose of protecting for the victimizer the benefits of their fraud,

(D) use fraudulent marriages to claim against the estates of their victims during the victims’ lives and after their deaths.

(3) The Legislature finds and declares that allowing such fraudulent marriages to be sustained creates an incentive for the victimizers to hasten the deaths of the victims, and that our judicial system therefore has a duty to address the invalidity of such marriages.

Probate Code 1900 (as currently in effect) is repealed, and re-enacted as Probate Code section 1901, ~~as modified and~~ as set forth below:

Probate Code section 1901 [13]

~~(a)~~ The appointment of a conservator of the person or estate or both does not affect the capacity of the conservatee to marry.

(b) A determination of the incapacity to marry shall be supported by clear and convincing evidence of the inability to adequately understand and appreciate one or more of the items of information described in section 814.[14]

Probate Code 1901 (as currently in effect) is repealed, and re-enacted as Probate Code section 1902, as modified and as set forth below:

Probate Code section 1902[15]

(a) The conservator of the person or estate or both, the conservatee, the spouse, or any interested party may petition the court for an order determining whether the conservatee has the capacity to enter into a valid marriage, as provided in Part 1 (commencing with Section 300) of Division 3 of the Family Code, or confirming that the conservatee had the capacity to enter into a valid marriage, regardless whether the marriage occurred before or after appointment of a conservator.

(b) Notice of hearing on the petition shall be given in the manner and for the period provided in Chapter 3 (commencing at 1460) of Part 1.

(c) The order of the court made pursuant to a petition under this section shall conclusively determine if the conservatee has the capacity to marry or had the capacity to marry at the time of the marriage or had the capacity to affirm the marriage at any time thereafter.

(1) Any marriage, which occurs after an order after a point in time at which the conservatee has been determined to lack or to have lacked the capacity to marry, shall be void ab initio.

(2) Any marriage that the court determined occurred at a time that the conservatee lacked the capacity to marry or to affirm the marriage thereafter shall be void ab initio.

(d) A determination that a person lacks or lacked the capacity to marry shall be supported by clear and convincing evidence.

Probate Code Section 1903 [16]is enacted to read as follows:

(a) Where an individual claims that he or she married a person within two years before a conservator was appointed for the latter person, and the individual claiming to be the spouse of the conservatee has knowledge that would put a reasonable person on notice that a conservator has been appointed, the individual claiming to be the spouse shall give notice to the conservator of the marriage as provided in this section. The individual shall disclose to the conservator the existence of the marriage within thirty days after the individual is possessed of information that would put a reasonable person on notice that a conservator was appointed.

(b) Within thirty days of a request by the conservator, the individual shall inform the conservator in writing of the date and place of the marriage, and provide to the conservator a copy of the marriage certificate or proof of a confidential marriage.

(c) The individual shall be liable for all damages suffered by the conservatee or by the estate of the conservatee, including attorneys fees and costs, as the result of any failure to comply with this subdivision.

(d) If the individual has not complied with the requirements of this section, a presumption affecting the burden of proof shall arise that the conservatee lacked the capacity to marry at the time of the marriage, and that the conservatee’s consent to the marriage was obtained by fraud.

(e) The appointment of a temporary conservator shall constitute the appointment of a conservator for the purposes of this section.

(f) The presumption created by this section shall not apply if the court finds for good cause either than the failure of the individual to comply with the requirements of this section was inadvertent, or excusable neglect, or that the imposition of the presumption would be unjust in light of the circumstances, in the discretion of the court.

Probate Code Section 1904[17] is enacted to read as follows:

(a) If a person for whom a temporary or general conservator has been appointed pursuant to Division 4 of the Probate Code thereafter marries, and the person marrying the temporary or general conservatee has reasonable notice of facts that would put a reasonable person on notice of conservatorship proceedings, and reasonable notice of the marriage and the alleged spouse’s address is not served upon the temporary or general conservator within fifteen days after the marriage, or a copy of the marriage certificate or proof of a confidential marriage is not served upon the temporary or general conservator within fifteen days after a demand therefor by the temporary or general conservator, there shall exist a rebuttable presumption affecting the burden of proof that the conservatee lacked the capacity to marry at time of the marriage.

(b) The presumption created by this section shall cease to exist if no petition for an order annulling or determining said marriage to be void is filed within 60 days after the general conservator has been appointed and the general conservator has been served with both the notice and a copy of the marriage certificate or proof of a confidential marriage.

(c) The presumption created by this section shall not apply if the court finds for good cause either than the failure of the individual to comply with the requirements of this section was inadvertent, excusable neglect, or that the imposition of the presumption would be unjust in light of the circumstances.

Probate Code Section 2580[18] is amended to read as follows:

(a) The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:

(1) Benefitting the conservatee or the estate.

(2) Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.

(3) Providing gifts for any purposes, and to any charities, relatives (including the other spouse), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.

(b) The action proposed in the petition may include, but is not limited to, the following:

(1) Making gifts of principal or income, or both, of the estate, outright or in trust.

(2) Conveying or releasing the conservatee’s contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.

(3) Exercising or releasing the conservatee’s powers as donee of a power of appointment.

(4) Entering into contracts.

(5) Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatee’s disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.

(6) Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.

(7) Exercising options of the conservatee to purchase or exchange securities or other property.

(8) Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:

(I) Life insurance policies, plans, or benefits.

(ii) Annuity policies, plans, or benefits.

(iii) Mutual fund and other dividend investment plans.

(iv) Retirement, profit sharing, and employee welfare plans and benefits.

(9) Exercising the right of the conservatee to elect to take under or against a will.

(10) Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.

(11) Exercising the right of the conservatee (I) to revoke a revocable trust or (ii) to surrender the right to revoke a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke a revocable trust if the instrument governing the trust (I) evidences an intent to reserve the right of revocation exclusively to the conservatee, (ii) provides expressly that a conservator may not revoke the trust, or (iii) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke the trust.

(12) Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.

(13) Making a will.

(14) Petitioning or prosecuting a petition for dissolution of marriage or legal separation.

Probate Code Section 21309[19] is enacted to read as follows:

A no contest clause shall not be enforceable against a beneficiary for an action under Section 823 or 1901.

SECTION 1. Annotated Version

Family Code section 2202 is enacted to read as follows: [20]

A purported marriage by a person totally without understanding is void ab initio.

Family Code section 2210 is amended to read as follows:

A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:

with the other as husband and wife.

(c) Either party was of unsound mind [21] , unless the party of unsound [22] mind, after coming to reason, freely cohabited with the other as husband and wife. ~~The capacity of a party to marry is governed by Part 17 (commencing with section 810) of Division 2 of the Probate Code.~~

(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.

(e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as husband or wife.

(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.

Family Code section 2211 is amended to read as follows:[23]

A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:

(a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:

(1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.

(2) A parent, guardian, conservator, or other person having charge of the underaged male or female, at any time before the married minor has arrived at the age of legal consent.

(b) For causes mentioned in subdivision (b) of Section 2210, by either of the following:

(1) Either party during the life of the other.

(2) The former husband or wife.

~~(c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.~~

(1) at any time before the death of either party, by the party injured, or by a relative or conservator of the person or the estate of the party of unsound mind, or

(d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years

after the discovery of the facts constituting the fraud.

(e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years

after the marriage.

(f) For causes mentioned in subdivision (f) of Section 2210, by the injured party, within four years after the marriage.

Family Code section 2212 is amended to read as follows:[24]

(a) The effect of a judgment of nullity of marriage is to restore the parties to the status of unmarried persons.

(b) A judgment of nullity of marriage is conclusive only as to the parties to the proceeding and those claiming under them.

Family Code section 2330 is amended to read as follows:

(b) In a proceeding for dissolution of marriage or for legal separation of the parties, the petition shall set forth among other matters, as nearly as can be ascertained, the following facts:

(1) The state or country in which the parties were married.

(2) The date of marriage.

(3) The date of separation.

(4) The number of years from marriage to separation.

(5) The number of children of the marriage, if any, and if none a statement of that fact.

(6) The age and birth date of each minor child of the marriage.

(7) The social security numbers of the husband and wife, if available, and if not available, a statement to that effect.

(c)[25] A petition for dissolution or legal separation may be filed or maintained by a conservator or a guardian ad litem, provided that the court appointing the conservator or guardian ad litem has first determined that the proposed action is in the best interests of the conservatee or incapacitated person. In determining whether to authorize or require the proposed action, the court shall take into consideration all the relevant circumstances, which may include but are not limited to the applicable factors set forth in Probate Code section 2583.

THE FOLLOWING (INTERLINEATED) NEW SECTION IS WITHDRAWN FROM THIS PROPOSAL:

~~Probate Code Section 814 is enacted to read as follows:~~

~~(1) The person’s rights, duties, and responsibilities created by, or affected by the marriage.~~

~~(2) The probable consequences for the person and, where appropriate, the family and heirs of the person affected by the decision.~~

~~(3) The significant risks, benefits, and reasonable alternatives involved in the decision.~~

~~(5)~~ ~~Property rights,~~

~~(6)~~ ~~Spousal duties and obligations,~~

~~(7)~~ ~~The impact of marriage on heirs, and~~

(8) ~~Parental obligations.~~

Part 18 of Division 2 of the Probate Code, commencing with section 820, is enacted to read as follows:

Probate Code section 820 is enacted to read as follows:

(a) A marriage entered may be adjudged a nullity after the death of a party, for causes mentioned in subdivisions (c) [unsound mind], (d) [fraud], or (e) [force] of section 2210, if:

(1) the marriage took place within two years before the date of death, or

(2) the marriage occurred within two years before the later of the following events:

(A) The date of the appointment of a temporary or general conservator (whichever occurred earlier) of person or the estate or both, which occurred within one year of the date of death;

(B) The date notice of the marriage was given to the conservator, where the notice satisfied the requirements of section 1903, and where such notice was given within one year of the date of death.

(b) A marriage may not be adjudged a nullity under this subdivision if the marriage could not have been so adjudged prior to the death of the decedent in a proceeding under Family Code section 2210.

(c) The appointment of a temporary conservator shall constitute the appointment of a conservator for the purposes of this section.

Probate Code section 821 is enacted to read as follows:

Probate Code section 822 is enacted to read as follows: [26]

Probate Code section 823 is enacted to read as follows: [27]

Probate Code section 824 is enacted to read as follow as follows:

Probate Code section 1900 is enacted to read as follows:

(1) The Legislature finds and declares that there is an epidemic of financial abuse of elders and dependent adults.

(2) The Legislature finds and declares that there is a growing cottage industry of victimizers who:

(A) prey on mentally impaired persons for the purpose of fraudulently acquiring their property,

(B) enter into purported marriage ceremonies with demented elders or dependent adults for the purpose of protecting for the victimizer the benefits of their fraud,

(D) use fraudulent marriages to claim against the estates of their victims during the victims’ lives and after their deaths.

Probate Code 1900 (as currently in effect) is repealed, and re-enacted as Probate Code section 1901, ~~as modified and~~ as set forth below:

Probate Code section 1901

~~(a)~~ The appointment of a conservator of the person or estate or both does not affect the capacity of the conservatee to marry.

Probate Code 1901 (as currently in effect) is repealed, and re-enacted as Probate Code section 1902, as modified and as set forth below:

Probate Code section 1902 [29]

(b) Notice of hearing on the petition shall be given in the manner and for the period provided in Chapter 3 (commencing at 1460) of Part 1.

(1) Any marriage, which occurs after an order after a point in time at which the conservatee has been determined to lack or to have lacked the capacity to marry, shall be void ab initio.

(2) Any marriage that the court determined occurred at a time that the conservatee lacked the capacity to marry or to affirm the marriage thereafter shall be void ab initio.

(d) A determination that a person lacks or lacked the capacity to marry shall be supported by clear and convincing evidence.

Probate Code Section 1903 is enacted to read as follows: [30]

(e) The appointment of a temporary conservator shall constitute the appointment of a conservator for the purposes of this section.

Probate Code Section 1904 is enacted to read as follows: [31]

Probate Code Section 2580 is amended to read as follows:

(1) Benefitting the conservatee or the estate.

(2) Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.

(b) The action proposed in the petition may include, but is not limited to, the following:

(1) Making gifts of principal or income, or both, of the estate, outright or in trust.

(3) Exercising or releasing the conservatee’s powers as donee of a power of appointment.

(4) Entering into contracts.

(6) Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.

(7) Exercising options of the conservatee to purchase or exchange securities or other property.

(I) Life insurance policies, plans, or benefits.

(ii) Annuity policies, plans, or benefits.

(iii) Mutual fund and other dividend investment plans.

(iv) Retirement, profit sharing, and employee welfare plans and benefits.

(9) Exercising the right of the conservatee to elect to take under or against a will.

(10) Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.

(12) Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.

(13) Making a will.

(14) Petitioning or prosecuting a petition for dissolution of marriage or legal separation.

Probate Code Section 21309 is enacted to read as follows: [32]

A no contest clause shall not be enforceable against a beneficiary for an action under Section 823 or 1901.

End of text of the Proposal

[1] An annotated version of this proposal, containing explanatory footnotes, commences here.

[2] For the annotated version of Section 2202, click here.

[3] For the annotated version of Section 2210, click here.

[4] For the annotated version of Section 2211, click here.

[5] For the annotated version of Section 2212, click here.

[6] For the annotated version of Section 2330, click here.

[7] For the annotated version of Section 820, click here.

[8] For the annotated version of Section 821, click here.

[9] For the annotated version of Section 820, click here.

[10] For the annotated version of Section 823, click here.

[11] For the annotated version of Section 824, click here.

[12] For the annotated version of Section 1900, click here.

[13] For the annotated version of Section 1901, click here.

[14] The interlineation reflects the Section’s decision to withdraw the portion of this proposal that would have codified the case law which defined the parameters of the legal mental capacity to marry.

[15] For the annotated version of Section 1902, click here.

[16] For the annotated version of Section 1903, click here.

[17] For the annotated version of Section 1904, click here.

[18] For the annotated version of Section 2580, click here.

[19] For the annotated version of Section 21309, click here.

[20] The doctrine that contracts are void ab initio, generally speaking, if a person was totally without understanding at the time of contracting, has been codified in Civil Code §38. The term “totally without understanding,” insofar as contracts other than marriage is concerned, has been defined in much case law. See the annotations under Civil Code §38.

In dictum, the Supreme Court suggested in Estate of Gregorson (1911) 160 Cal. 21, 27 that the “totally without understanding” doctrine might also be applied to a marriage. But the case of In re Karau’s Estate (First Dist. Div. 1 1938) 26 Cal.App.2d 606, 80 P.2d 108, held that the “totally without understanding” doctrine does not apply to the contract of marriage. Hence, under Karau, a totally bogus marriage to an advanced Alzheimer’s disease nursing home resident may not be challenged after the victim’s death.

[21] The decision to marry is often made without any reference to logic or reasoning, and is often irrational. Nevertheless, case law in California and throughout the United States has uniformly held that the capacity to marry is to be measured by the §812 contract-based test for “soundness of mind.” The Courts seem to think that competent people can choose to act irrationally, but an incompetent person is entitled to protection from other people taking advantage of the incompetent’s impaired mental functioning. Hence, a court can rescind (aka “annul”) a contract of marriage if the facts merit that result.

A person’s ability to understand and appreciate those items of information must be at the minimal level required by society (in the opinion of the trier of fact) in order for society’s rules to impose on a contracting party the responsibilities associated with the contract.

A judicial determination of “unsoundness of mind”must be based upon a finding of deficits in mental functioning. In order for any particular deficit to count, it must be so severe that it substantially impairs the person’s ability to understand and appreciate the consequences of their acts. Probate Code §811(c).

A determination of “unsound mind” means that a person’s mental functioning is so impaired that society cannot in good conscience impose upon that person the responsibilities normally associated with the contract.

The law requires only the ability to understand and appreciate the critical relevant information (which is probably “listed” in Probate Code §812; see the text near the end of footnote no. ). . The law does not require that the person actually understand and appreciate the critical relevant information. But the law does require a minimum level of ability to understand and appreciate information, in order for society to hold a person responsible for the terms of a contract.

This requirement of minimal level of mental functioning prevents artful and designing persons from seeking out and targeting, and getting married to advanced Alzheimers disease victims, in order to steal the victims’ estate, make claims for spousal support, and later steal the victim’s inheritance from the victims’ rightful heirs.

The requirement of a minimum level of mental function integrity protects the mentally impaired person from falling prey to artful and designing persons who would enter into such marriages for the purpose of isolating the victim from his or her family, stripping the victim of his or her assets, and neglecting the declining victim’s health in order to close the case before anything can be done. A “spouse” is often allowed unilaterally (without consulting children or other relatives) to make the decision to “no code” an advanced dementia patient.

[22] The term “sound mind” is used in various contexts in the law to mean different things. For example, Probate Code §6100(a), which says that a person must be of “sound mind” to make a will. Decisional law has established that a person may be of sufficiently “sound mind” to execute a will, but yet be quite insane and unable to transact business in any rational manner. By contrast, Probate Code §812 and Civil Code §39(b) address the capacity to contract. In order to be of “sound mind” to contract, Probate Code §812 says that a person must be reasonably able to understand and appreciate the probable risks, benefits and reasonable alternatives involved in the contract. Civil Code §39(b) creates a rebuttable presumption of “unsound mind,” or lack to capacity to contract, if a person is “substantially unable to manage his or her financial resources, or to resist fraud or undue influence.”

The foregoing paragraphs show that far more mental function integrity is required for one to be of “sound mind” to contract, than is required for one to be of “sound mind” to sign a Will. Contracts require more mental function integrity than wills, probably for the following two reasons. First, the low mental function integrity requirement for testamentary capacity preserves for the declining elderly a measure of control over the care they receive from their loved ones, i.e., “Abandon me and risk losing your inheritance.” Second, the law of contractual capacity concerns itself with the affairs of a living person. The person may need to use his or her property for his or her own care. Society abhors the image of a needy person, who has been duped out of his assets, turning to the rest of us for aid.

A person must be of “sound mind” to make a legally valid decision to marry, according to Family Code §2210 (c). What are the parameters which determine whether one is of “sound mind” to marry? Family Code §300 says that marriage is a relationship arising out of contract. Therefore, the person making the decision to marry must have sufficient mental function integrity to be of “sound mind” to contract, i.e., to enter the specific contract of marriage.

The determination whether a person has the capacity to enter into a specific contract is based on Probate Code §§ 811 and 812. Those sections determine whether one is of “sound” or “unsound” mind for purposes of that contract. Essentially, Section 812 says that, in order for a person to have capacity to enter into a particular contract, the person must have the ability to understand and appreciate critical items of information associated with that contract, i.e., the probable: [1] consequences of the contract, and the probable [2] risks, [3] benefits and [4] reasonable alternatives.

[23] David Long commented that this proposal “seems a good idea, assuming this is not possible today.” The California Supreme Court held, in Karau’s Estate (First Dist. Div. 1 1938) 26 Cal.App.2d 606, 80 P.2d 108, that a marriage may not be challenged after the death of either party.

[24] Mr. Long indicated that this “seems a good idea.”

[25] Under existing law, as set forth Caballero v. Caballero (Second Dist. Div. 3 1994) 27 Cal.App.4th 1139, 33 Cal.Rptr.2d 46, a Conservator can unilaterally make the decision to file a petition for dissolution. Alternatively, an attorney appointed by the court to represent an incompetent person can force the Conservator to petition for dissolution of marriage. The decisions made by the court-appointed lawyer or by the Conservator to end the marriage of the Conservatee can be can be based upon when under current law, since current law provides absolutely no guidelines to limit their discretion. In other words, under current law, the conservator’s discretion to petition to terminate the marriage is almost completely unfettered. There are NO guidelines in the law to guide the conservator or the court, if the court chooses to hold a hearing on the issue of whether the conservator may petition for dissolution of the marriage. The Conservator can file a petition for divorce without seeking Probate Court guidance.

The enactment of this amendment would limit the conservator’s discretion, and require a Court hearing, with notice to interested persons, and a consideration of all evidence that the Court deems relevant. Section 2580 et seq. was enacted to codify decisional law which addressed certain actions (e.g. gifting) that the courts considered beyond the purview of a conservator or agent because they were too “personal.” The list of factors to be considered by the court (in §2582) is explicitly not exclusive, and proposed Family Code §2330 explicitly provides that the Court shall consider all “relevant factors,” which “may include but are not limited to the applicable factors set forth in Probate Code section 2583.” The list is merely an aid or reminder to the Court of those factors which courts have generally found to be helpful in addressing these particularly “personal” issues.

[26] The reference to Probate Code §21350 is appropriate. Section 21350 might be applied to a “transfer” (within the meaning of that term as applied in §21350) that occurred before the marriage which was annuled for one of a number of possible reasons.

[27] David Long’s comment: “Seems needed.”

[28] The interlineation reflects the Section’s decision to withdraw the portion of this proposal that would have codified the case law which defined the parameters of the legal mental capacity to marry.

[29] Currently, the Family Law Department of the Superior Court has sole jurisdiction to annul marriages. The Family Law Department can annul marriages without regard to when the marriage occurred. This proposal would empower the Probate Court (which typically has peculiar experience and expertise in dealing with issues of mental incapacity) to annul marriages for lack of legal mental capacity. The determination of legal mental incapacity would continue to be effective until the Court otherwise orders like the determination of “incapacity” (for purposes of Civil Code §40 and Probate Code §1872) that arises from the appointment of a conservator pursuant to §1801(b). This would be a “high stakes” proceeding, as David Long observed. But it is important to remember that determinations of legal mental incapacity are made to protect rather than harm the incapacitated person.

[30] David Long aptly questions, “Is this provision subject to abuse? Does it create legal traps for the innocent and unwary spouse?” Several things were done to address Mr. Long’s concern. First, a determination of mental incapacity to marry must be proven by clear and convincing evidence. Prob. C. §1902. Second, the Court is given the authority to set aside the presumption, if the spouse’s failure to comply with the section’s requirements was inadvertent, excusable neglect, or if the imposition of the presumption would be unjust in the Court’s discretion. This power in the Court would serve to reduce the risk of gamesmanship being employed successfully against an innocent surviving spouse.

[31] David Long questions, “Is it too harsh to create a presumption of lack of capacity to marry based solely on the failure of the non-conservatee spouse to notify the conservator within 15 days of the marriage?” A spouse, who is really a spouse, would want a conservator to know about his or her existence. A true spouse would be entitled to notice and to have input about a variety of financial and personal decisions that the conservator might otherwise make without the spouse’s input. To address the potential, which Mr. Long mentioned, for unduly harsh results, several things were done. First, the proposal now provides that a determination of mental incapacity to marry must be proven by clear and convincing evidence. Prob. C. §1902. Second, the Court is given the authority to set aside the presumption, if the spouse’s failure to comply with the section’s requirements was inadvertent, excusable neglect, or if the imposition of the presumption would be unjust in the Court’s discretion. This power in the Court to avoid unfairness would serve to reduce the risk of gamesmanship being employed successfully against an innocent surviving spouse.

[32] David Long comments: “Assuming the actions under these sections are appropriate, this provision would be needed.”