Receiving gifts

(Editor’s Note: The post below was published on November 21, 2016.  California law as to undue influence presumptions between spouses changed on January 1, 2020, due to Assembly Bill 327, discussed in a subsequent post.)

When Wife works with her Sacramento estate planning lawyer to favor her Husband over her children from a prior marriage in her trust, does California law presume that Husband exerted undue influence over the Wife to gain a benefit?  Until 2014, most California trust and estate lawyers would answer that question in the negative.  Favoring a current spouse over other potential beneficiaries is a common and natural choice in estate planning.

Yet a California Court of Appeal based in San Jose took the opposite position in Lintz v. Lintz (2014) 222 Cal.App.4th 1346.  The Lintz case casts a shadow over millions of “honey I love you” wills and trusts in the Golden State.  Until the California Legislature or Supreme Court resolves this question, step-children will invoke Lintz in an effort to gain the upper hand over step-parents.  This post will discuss the inconsistency that Lintz recently has created in California law.

VotingAs a trust litigation attorney in Sacramento, I seldom see overlap between bare knuckle political campaigns and family inheritance disputes. So, on the eve of a big election, it seems fitting to report on a new case that bridges political and family conflicts.

Jail CellMany trust and estate disputes in Sacramento County Superior Court and elsewhere involve financial elder abuse. Concerned family members may sue the wrongdoer in civil court to recover monetary damages. But what about criminal penalties? When does the “bad guy” (or gal) end up in jail?

While many of my clients are rightfully outraged about the family member or interloper who has stolen money from a vulnerable elder, criminal prosecution is relatively unusual. Our criminal laws, including California Penal Code section 368(d), prohibit defrauding an elder but our prosecutors seldom prosecute those who could go to prison.