A Caregiver Married My Parent: What California Law Allows

The caregiver who came three afternoons a week is now your father's wife. You found out from a neighbor, from a probate notice, or when a deed to the house turned up in her name. Can the marriage be undone? And does she now take what your parents spent fifty years building? If a caregiver married your parent in California, here is what the law allows.

Undoing the marriage is hard, and after a death it is usually impossible. But since January 1, 2020, a family does not have to undo it. California presumes that a gift to a caregiver spouse within six months of the marriage is the product of fraud or undue influence (Probate Code § 21380(a)(4)), and that a caregiver whose spouse died within six months of the wedding has no claim to a spouse's share of the estate (Probate Code § 21611(d)), unless the caregiver disproves it by clear and convincing evidence.

Can you annul a caregiver's marriage to your parent in California?

The capacity to marry is the lowest bar in the law. In In re Marriage of Greenway the Court of Appeal described "a sliding scale, with marital capacity requiring the least amount of capacity, followed by testamentary capacity," with ordinary contracts at the top. A parent who lacked the capacity to sign a valid trust may still have had the capacity to marry, and a conservatorship "does not affect the capacity of the conservatee to marry" (Probate Code § 1900).

The annulment grounds are narrow. A marriage is voidable if "either party was of unsound mind" (Family Code § 2210(c)), but only the injured party, "or ... a relative or conservator of the party of unsound mind," may file, and only "at any time before the death of either party" (Family Code § 2211(c)). Read that last clause twice. Once your parent has died, no one can annul the marriage for lack of capacity. Fraud is a separate ground that only the defrauded spouse can raise (Family Code § 2211(d)).

Meanwhile the marriage itself carries money. With no will, a surviving spouse takes the decedent's half of the community property and one-third to all of the separate property, depending on the children (Probate Code § 6401). If the will or trust predates the marriage, the new spouse is an "omitted spouse" and takes a similar share, up to one-half of the separate property (Probate Code § 21610). A caregiver never needed a new will. The wedding did the work.

And the caregiver presumption had a hole in it. A gift to a care custodian of a dependent adult is presumed to be the product of fraud or undue influence (Probate Code § 21380(a)(3)), but that presumption never applied to a person related to the parent "by blood or affinity" or to "the cohabitant of the transferor" (Probate Code § 21382(a)). A spouse is related by affinity. A live-in caregiver is a cohabitant. Marry the patient, or move in, and the presumption switched off.

What changed for caregiver marriages in California in 2020?

Assembly Bill 328 (Stats. 2019, ch. 10), signed June 26, 2019 and effective January 1, 2020, closed the hole in three moves.

First, the presumption now reaches "a care custodian who commenced a marriage, cohabitation, or domestic partnership" with a dependent adult "while providing services to that dependent adult, or within 90 days after those services were last provided," when the gift was made or the document signed "less than six months after" the relationship began (Probate Code § 21380(a)(4)).

Second, the exemption for relatives and cohabitants now opens with "Except as provided in paragraph (4) of subdivision (a) of Section 21380" (Probate Code § 21382(a)). Marrying the patient no longer turns the presumption off.

Third, a caregiver spouse is not an omitted spouse when the marriage began during the care or within 90 days after it and the parent "died less than six months after the marriage commenced," unless the spouse proves by clear and convincing evidence that the marriage "was not the product of fraud or undue influence" (Probate Code § 21611(d)).

The burden is the point. The caregiver, not you, must prove the gift was clean, by clear and convincing evidence (Probate Code § 21380(b)), and a caregiver who fails "shall bear all costs of the proceeding, including reasonable attorney's fees" (Probate Code § 21380(d)).

What the law did not do: it did not void the marriage, and the spouse keeps the community property share under Probate Code § 6401, usually small after a marriage of months. If your parent had no will or trust at all, the omitted spouse rule never applies, and the spouse inherits under Probate Code § 6401 unless the court finds elder abuse (Probate Code § 259, below). And both windows are six months; a parent who lived seven months after the wedding leaves you with the ordinary proof case described further down.

Does the caregiver marriage presumption apply to your family?

Was the caregiver a care custodian? Anyone who provided health or social services, including "companionship, housekeeping, shopping, cooking, and assistance with finances" (Probate Code § 21362(b)), paid or not. Only an unpaid friend whose friendship predates the care by 90 days, the death by six months, and any hospice admission is exempt (Probate Code § 21362(a)).

Was your parent a dependent adult? At the signing, 65 or older and unable to provide for their own health, food, clothing, or shelter, or having, because of a mental deficit, "difficulty managing his or her own financial resources or resisting fraud or undue influence" (Probate Code § 21366(a)). Medical records decide this.

What can a family do about a caregiver who married a parent?

What can you do while your parent is alive?

1. See your parent alone. Controlling a person's "interactions with others" is the first tactic the undue influence statute names (Welfare and Institutions Code § 15610.70). Write down every refused visit.
2. Ask the court to rule on capacity to marry. In a conservatorship, a relative, a friend, or any interested person may ask the court to decide whether the conservatee can marry (Probate Code § 1901).
3. File for annulment while both are alive. A relative or conservator may petition on the unsound mind ground, but only before the death of either spouse (Family Code § 2211(c)). This is the one route that undoes the marriage itself.
4. Protect the money now. Taking an elder's property by undue influence is financial elder abuse (Welfare and Institutions Code § 15610.30). Adult Protective Services and a Probate Code § 850 petition to recover a deed or account do not wait for a funeral.

What can you do after your parent has died?

1. Get the documents. Ask the trustee in writing for the trust and every amendment (Probate Code § 16061.5), and pull the marriage certificate from the county recorder. If the trustee stalls, see what to do when a trustee will not give you the trust.
2. Contest anything signed within six months. A deed, beneficiary change, will, or trust amendment for the spouse inside the window carries the presumption (Probate Code § 21380(a)(4)); you petition the probate court (Probate Code §§ 17200, 850) and the spouse must rebut it by clear and convincing evidence. Our guide to how to contest a trust in California walks through that petition. A certificate of independent review can lift the presumption on a gift (Probate Code § 21384), so read any certificate closely.
3. Object to the spouse's share. If your parent died within six months of the wedding and the will or trust predates it, raise Probate Code § 21611(d) before any distribution; no certificate cures this one.
4. Plead elder abuse and Probate Code § 259. A spouse shown by clear and convincing evidence to have financially abused an elder in bad faith, recklessly, oppressively, fraudulently, or maliciously, while the elder was "substantially unable to manage his or her financial resources or to resist fraud or undue influence," is treated as having died first and takes nothing by will, trust, or intestacy (Probate Code § 259). A proven elder abuse claim carries attorney's fees (Welfare and Institutions Code § 15657.5), and property recovered under Probate Code § 850 can carry double damages (Probate Code § 859).
5. Outside the windows, prove it the ordinary way. Under Rice v. Clark the burden shifts when the person had a confidential relationship with your parent, took part in getting the document made, and benefits unduly. A spouse also owes "the highest good faith and fair dealing" (Family Code § 721), so a spouse who gains from a transaction must show it was fair. Our guide to undue influence in California covers the four factors.

What deadlines and evidence matter in a caregiver marriage case?

The annulment window closes at the death of either spouse (Family Code § 2211(c)). After that the usual clocks run: 120 days from the trustee's mailed notice for a trust (Probate Code § 16061.8), before admission or 120 days after for a will (Probate Code § 8270), four years from discovery for financial elder abuse (Welfare and Institutions Code § 15657.7), and one year from death for a claim against a caregiver spouse who has since died (Code of Civil Procedure § 366.2). The six-month windows are not filing deadlines; they decide whether a presumption applies at all. Put the wedding, the last day of care, every signing, and the death on one page, and let the deadline wizard give you the contest dates.

The evidence follows those dates: the agency contract, pay records, and shift texts that prove "care custodian" and fix the 90-day clock; the marriage license and certificate, with their date, place, and witnesses; the medical chart and any memory testing from that month; the deeds, beneficiary changes, and joint accounts dated within six months of the wedding; and the blocked numbers and turned-away visitors that show who was kept out.