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Care Custodians and Spouses: New Legislation Affecting Their Rights
Trusts & Estates Section
Credit(s):
1 Legal Specialization in Estate Planning; Trust & Probate Law
1 Participatory MCLE Credits
In the 2014 decision of Lintz v. Lintz the court applied Family Code section 721 to estate plans. Section 721 imposes a duty of the highest good faith and fair dealing on spouses, and a statutory presumption of undue influence arises wherever one spouse obtains an advantage over the other. Probate Code section 21385 was amended to remove the presumption created by the Lintz case. Other legislation passed protects elders from aggressive Care Custodians.
Care Custodians that secure an estate plan from a dependent adult have a presumption of undue influence arise against them. However, where the Care Custodian marries the dependent adult they fall into a loophole that allows a spouse to procure an estate plan without that presumption arising. Legislation taking effect in January 2020 works towards closing that loophole and also makes it more difficult for a Care Custodian to claim to be an omitted spouse.
1 Legal Specialization in Estate Planning; Trust & Probate Law
1 Participatory MCLE Credits
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