Estate of Dito: Determination of Different Primary Rights Results in No Res Judicata

A decedent’s daughter sued the surviving spouse of the decedent for financial elder abuse of the decedent while he was alive. She sought an order of the trial court that the trial court should treat the surviving spouse as though she predeceased the decedent for purposes of distribution of the decedent’s estate.

The defense was res judicata—claiming that a prior court order acknowledging the marriage and the surviving spouse’s right to an omitted spousal share already precluded litigation on this matter. The trial court agreed and ruled in favor of the surviving spouse.

In Estate of Dito, the Appellate Court for the First District overruled the trial court, holding that the “primary rights” in the two litigations were different. The court found that the primary right in the first action was the surviving spouse’s right to inherit from the decedent’s estate, while the primary right in the second action was the decedent’s right not to be abused. Therefore, the elder abuse action was allowed to proceed.

See Kevin Rodriguez, Surviving Omitted Spouses Can Be Sued for Elder Abuse of the Decedent Spouse, JDSupra, May 25, 2012; see also, Estate of Dito, 198 Cal.App.4th 791 (2011).

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.