Surviving Omitted Spouses Can Be Sued for Elder Abuse of the Decedent Spouse


[author: Kevin Rodriguez]

Does a prior court ruling affirming the existence of a marriage and enforcing the surviving spouse’s share to a portion of the decedent spouse’s estate, preclude the surviving spouse from later being sued for financial elder abuse against the decedent spouse? The trial court in Estate of Dito (2011) 198 Cal.App.4th 791, believed that it did; the appellate court, however, overruled the trial court.

In Estate of Dito, the surviving spouse was sued in probate court by the decedent spouse’s daughter for financial elder abuse perpetrated against the decedent spouse while he was alive. As part of the suit, the daughter sought an order of the trial court under Probate Code § 259 that the surviving spouse should be treated as having predeceased the decedent spouse for purposes of distribution of the decedent spouse’s estate and trust. Counsel for the surviving spouse demurred on res judicata grounds, arguing that the financial elder abuse suit was re-litigation of a prior court order acknowledging the marriage as well as the surviving spouse’s right to an omitted spousal share under Probate Code § 21611. The trial court ruled in favor of the surviving spouse, sustaining the demurrer without leave to amend.

However, the Appellate Court for the First District overruled the lower court, finding that the “primary rights” involved in the two litigations were inherently different. Under the “primary rights theory” associated with res judicata, a claim raised in a second suit is based on the same cause of action as one asserted in a prior action if they are both premised on the same “primary right.” In Estate of Dito, the Court found that the primary right in the prior action was the surviving spouse’s right to inherit from the decedent spouse’s estate; in the later action, the primary right at issue was the decedent spouse’s right not to be abused. Therefore, the financial elder abuse action was not barred under the doctrine of res judicata. The Court further held that under Probate Code § 259, a person found liable for financial elder abuse is only treated as having predeceased the abused to the extent he or she would have been entitled to receive a distribution of the damages and costs the person is found liable to pay to the estate as a result of the abuse.

The Take Away: A ruling that a surviving spouse is entitled to a share of a deceased spouse’s estate does not protect the surviving spouse from later claims of financial elder abuse brought on behalf of the deceased spouse’s estate. However, to the extent the surviving spouse is found liable for financial elder abuse, he or she will only be disinherited from the deceased spouse’s estate to the extent of the abuse.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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