The Uneasy Case for California’s Care Custodian Statute

David Horton (Lecturer in Residence, Boalt Hall School of Law) has published an article on SSRN entitled The Uneasy Case for California’s Care Custodian Statute, 11 Chap. L. Rev. 1 (2008).

Here is the abstract of the article:

Californians will inherit hundreds of billions of dollars in the next two decades. Yet Probate Code section 21350(a)(6) – the state’s unique “care custodian” provision – casts a long shadow over this unprecedented transfer of wealth. Section 21350 creates a virtually unrebuttable presumption of invalidity for testamentary gifts to certain individuals. The statute first applied only to devises to attorneys and other fiduciaries. The Legislature then added subdivision (a)(6), which included bequests from seniors to their caregivers. However, by broadly defining this new class of suspect beneficiaries as non-relatives who provide “health or social services,” it seemed to imperil many legacies from seniors to friends. After the California Supreme Court’s decision in Bernard v. Foley – in which the majority, concurring, and dissenting opinions expressed qualms about the care custodian provision – the Legislature asked the Law Revision Commission to reconsider the statute. In turn, the Commission tentatively proposed limiting subdivision (a)(6) to paid caregivers. This Essay explains why the Commission’s recommendations would improve the statute, but ultimately do not go far enough. In particular, it challenges the normative claims that gifts to caregivers warrant scrutiny and that a bright-line rule is preferable to the flexible common law doctrine of undue influence.