Marrying Into Financial Abuse

Ashley E. Rathbun (J.D. Candidate 2010, University of San Diego School of Law) recently published her article entitled Marrying Into Financial Abuse: A Solution to Protect the Elderly in California, 47 San Diego L. Rev. 227 (2010).  An excerpt from the introduction is below:

This high profile case illustrates a growing problem: elderly individuals–persons “65 years of age or older”–can enter into marriages without the capacity to understand the nature of marriage or the potential repercussions of marrying. The ease with which an elderly person can enter into marriage presents an opportunity for unscrupulous individuals to marry elders of questionable capacity. Once in the relationship, it may prove difficult to dissolve the marriage prior to the elder’s death. Marriages “may be exploitative and provide a means of psychological, sexual, financial or social abuse.” A new spouse can gain control over the elder through the ability to access the elder’s financial information and the power to make healthcare decisions on the elder’s behalf–unless the elder specifies another individual in a durable power of attorney for healthcare. The new spouse then stands to inherit from the elder’s death.

This Comment argues that California should require proof of an elder’s marital capacity from an attending physician or mental health professional to ensure protection of elders whose mental capacity has declined to a point where they can no longer understand what marriage entails. Part II explores the problem of financial elder abuse and examines how it pertains to marriage in California. Part III explains the levels of capacity required to enter into marriage, create testamentary documents, and enter into binding contracts, and the reasons for these capacity requirements. Part IV discusses procedural and statutory safeguards from the law of trusts and estates. These safeguards are aimed at protecting testamentary intent, but unfortunately, they may inadvertently encourage financially exploitative marriages. Part V details the statutory requirements for family members to challenge the validity of an elder’s marriage. It also describes the inadequacies of proposals that suggest that courts allow for postdeath litigation to determine the elder’s capacity on the elder’s wedding day. Part VI describes the elements of this Comment’s proposed marital capacity test and finds that the test is constitutionally permissive.