California law makes it difficult for a caregiver to become the beneficiary of an elderly person's estate. In a nutshell, any gift in an elderly person's will or trust to his caregiver must be vetted by an independent attorney to confirm the elderly person is of sound mind and is not acting under undue influence by the caregiver.
However, if the caregiver marries the elderly person, all bets are off.
Under California law, it is hard to protect an elderly person from marriage abuse because the required mental capacity to marry is so low. Even an incompetent person can enter into marriage if he understands the duties and obligations of marriage. A marriage will be upheld in California so long as both parties gave consent, and all that is needed for consent is a lucid interval during the wedding vows.
Thus, in California, it is easy to enter into a marriage, but very difficult to challenge a marriage. And this opens the door to elder abuse by marriage. The basic scenario is someone manipulates an elderly person into marriage so she can claim half of his estate when he dies.
Senator Ralph Dills married his step-daughter
A dramatic example is former California State Senator Ralph Dills, 1912 -2002. Dills married his third wife, Elizabeth Ging Lee, in 1970. Ms. Lee had three children, two sons and a daughter. Dills adopted the sons, but not the daughter. When Elizabeth Dills died in 2000, Dills, who had lost much of his mental capacity, allowed his deceased wife's daughter, Wendi Lewellen, to take care of him.
According to many reports including an August 18, 2002, article in the San Francisco Chronicle, Dills' sons claimed Lewellen began to dress like their mother and even wore her perfume. They claimed she was trying to deceive their father into thinking she was his deceased wife.
My sister is my mother - what?
Then came the biggest shock. Lewellen became Dills' new wife, secretly marrying him. Dills' sons were stunned.
Lewellen said it was for tax purposes and that she did nothing wrong.
Dills left a large estate, and Lewellen was slotted to get half. Even if Dills didn't amend his will or trust to include her as a beneficiary, she would still qualify for half of the estate through the California omitted spouse law.
Under California Probate Code 21610, if a decedent fails to provide in his will or trust for his surviving spouse who married the decedent after the execution of the decedent's will or trust, the omitted spouse will receive half of his community property.
Dills was called the ironman of California politics, having served in the state legislature longer than anyone, and ironically, he was known for his legislative work to protect seniors from elder abuse.
Elder abuse by marriage
Financial elder abuse, which is a cause of action under California law which can be brought against someone accused of intent to defraud or for the wrongful use of an elder person's assets, is becoming more and more prevalent in California. And in a financial elder abuse case, the abused elder's family members have a fighting chance to win a lawsuit against the abusive party. But not so with elder abuse by marriage, because it is almost impossible to prove the marriage was entered into without consent.
The National Foundation of Protective Services has reported that illness, depression, isolation and cognitive impairment make an elder person vulnerable to bad actors. If you have a widowed parent, stay close.