In my prior article, “The Confidential Marriage”, I discussed how confidential marriage licenses can be abused by predators to prey upon an elderly person without the elder’s family knowing what has occurred until it is too late.  What can be done to prevent such abuse of marriages?  Let’s discuss.

Unfortunately there are no criminal sanctions to deter someone from abusing the confidential marriage license.  California’s Elder Abuse Act punishes someone who, “takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.”  There is no equivalent sanction against someone who marries an elder in order to obtain a whole range of state and federal rights and protections including state spousal support and spousal inheritance rights.

The confidential marriage license allows predators to marry an elder without the elder’s unsuspecting family and friends realizing a marriage has taken place until after the elder’s death.  By then it may be too late.  Assets may have been transferred during the elder’s life into the abuser’s name in the form of interspousal gifts and once the elder dies the predator as a surviving spouse is an heir to part or all of the deceased elder’s estate.

The level of competency required for marriage is minimal: Even an incompetent person can get married provided that he or she had a lucid moment at the time when consenting to the marriage.  While both spouses are still alive, their marriage is subject to annulment by court order, but once the elder dies, it is difficult for the elder’s surviving family to anull the marriage.

Prior to the elder’s death the marriage can be annulled in court either because it is voidable (on the grounds of unsound mind, fraud or undue influence) or because it was void from the beginning because the requirements for the marriage were not met.  After death, only marriages that are void can be annulled.

A traditional marriage requires a license, consent, two witnesses, an attesting witness, solemnization, and recordation.  A confidential marriage does not require any witnesses, any attestation by a witness, or recordation of the license.  The confidential marriage, however, requires the couple already to be living together and to be holding themselves out as husband and wife prior to marriage.  Often this is not the case.

Accordingly, in Estate of Tollefsen the court annulled a confidential marriage because the couple had not lived together and had not been holding themselves out as husband and wife when they signed the confidential marriage license which stated otherwise.

Annulling the marriage is not the only remedy.  A court may always reverse interspousal transfers and testamentary bequests that are the product of financial elder abuse and undue influence.

Anytime one spouse obtains an unfair benefit or advantage over the other spouse a presumption of undue influence applies.  This requires the benefited or advantaged spouse to prove that the advantage or benefit obtained was not unfairly obtained.  Thus when one spouse with substantial assets leaves much or all of his/her estate to the other spouse with no or little assets this presumption applies.

In Lintz v. Lintz, the court found that financial elder abuse and undue influence had occurred based on the following circumstantial evidence: the decedent’s wife had taken over the financial affairs, fired the husband’s estate planning attorneys, made the husband transfer his substantial separate property estate (worth millions) into community property, and amend his trust to give his wife an exclusive life estate and powers to the detriment of the husband’s youngest child.

None of the foregoing remedies is pain free, and all involve substantial legal fees.  Thus, helping seniors to avoid predators is preferable.


“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”