On June 27, 2019, California Gov. Newsom signed AB 328, which amends California’s Probate Code, to better protect dependent adults in California from financial elder abuse by their care custodians (a defined term).

Existing law presumes that gifts – made either during life or at death – by a dependent adult (a defined term) to their care custodian are the product of undue influence (a defined term), and thus void; unless the undue influence presumption is overcome by clear and convincing evidence to the contrary.

A dependent adult is a person who is unable to provide properly for his or her own personal needs for physical health, food, clothing, or shelter and/or due to one or more deficits in mental functions, as defined, the person has difficulty managing that person’s own financial resources or resisting fraud or undue influence.

Care custodians are caregivers who provide health or social services to a dependent adult. An exception exists for an unpaid caregiver who had a personal relationship (friendship) with the dependent adult at least 90 days prior to commencing the caregiver services.

However, many predatory care custodians are marrying, cohabiting or becoming registered domestic partners to their dependent adult to take advantage of an existing loophole for such relationships.

Existing law exempts gifts by partners to their spouses, domestic partners and cohabitants (partners) who are also care custodians from the presumption of undue influence. Many predatory care custodians, therefore, marry or cohabitate with their dependent adults. Marriage, however, provides many additional financial benefits to a surviving spouse.

By marrying the dependent adult, the care custodian could receive lifetime gifts and become a death beneficiary under the dependent adult’s will, trust, retirement accounts or life insurance without the presumption of undue influence.

Also, if the dependent adult made no provisions for the care custodian after marrying then the care custodian as an “omitted spouse” receives a presumptive intestate share in the deceased dependent adult’s estate (i.e., one-third to one-half of the decedent’s estate).

AB 328 tightens the marriage loophole: First, gifts to care custodians who marry their dependent adult within six (6) months prior to the gift (date of transfer) or to the execution of a testamentary document (i.e., a will or trust) are presumed to be the product of undue influence; second, care custodians who marry their dependent adult within six months prior to the dependent adult’s own death do not qualify as an omitted spouse to receive an intestate share of the dependent adult’s estate.

In both these scenarios, the care custodian must either still be providing care services or have ceased such services within 90 days of getting married for these rules to apply. The 90 days is a cooling off period between when the caregiver services end and the marriage takes place. It may or may not be long enough to allow for the caregiver and the dependent adult to go their own separate ways.

In sum, testamentary gifts or intestate inheritances that arise within a short term marriage (under 6 months) between a care custodian and a dependent adult are now presumptively void as the product of undue influence.

Also, such marriages no longer qualify the surviving care custodian spouse for an intestate share of the deceased dependent adult’s estate.

While AB 328 is real progress, it arguably does not go far enough. That is, predatory care custodians may be able to wait out the 90 day and/or the six month periods discussed above.

Note: AB 328 was sponsored by the Trusts and Estates Committee of the California Lawyers Association. Dennis Fordham contributed to AB 328 as a volunteer attorney on the Marriage Subcommittee that worked on the legislative bill.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. and 707-263-3235.