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Don’t Let Your Uncle Marry His Attorney – True Scary Halloween Story

As I told you a few posts ago, last week I was in San Diego with 400 of my closest attorney friends for the annual Southern California Tax and Estate Planning Forum. One of the best speakers was Ellen McKissock, a trust litigator from San Jose. She told a very scary story about a real life case she successfully litigated. Her case is worthy of our scary Halloween edition post.

Dateline: Bay Area. A few years ago, a middle aged female estate planning attorney represented an 86 year old client who was blind and dying of cancer with diminished mental capacity.  He had no wife and no children. But he did have a multi-million dollar estate.

Under California law, attorneys are “prohibited transferees” for estate planning. A client cannot name his attorney as the beneficiary of his estate without overcoming substantial legal obstacles. But there is a big loophole. If the attorney marries the client, the obstacles disappear. A spouse is not considered a prohibited transferee.

The too-clever attorney knew her client had no family and no natural heir for his estate. She also knew she could not become his heir unless she became his wife. Once married, she would not even need him to change his will or living trust. Following his death, she could simply file a spousal property petition and claim at least half of his estate.

And that is exactly what happened. She convinced her client to marry her, and they entered into a “confidential marriage.”

A confidential marriage is an antiquated California law that allows couples who meet the standards to marry without a public record. In 1850, when California became a state, it decided not to adopt the common marriage concept of other states like Texas. Under common marriage jurisdictions, a couple that lives like a married couple for the requisite time period will be considered a married couple under state law. For whatever reason, California rejected the common marriage principle. Instead, the California legislature enacted the confidential marriage statute.

In 1850, there were many couples living as man and wife, but they hadn’t formally married. Many had families. The intent of the confidential marriage statute was to allow these couples to save face in their communities by getting married without anyone knowing they weren’t already married.

Some time after the confidential marriage, the client’s niece, who lived in Europe, came to visit him. When she asked him how he was doing, he told her he was fine and that he thought he was married. The niece asked him about his wife. He couldn’t tell her much about her, and apparently he couldn’t explain why she didn’t live with him.

One element of a confidential marriage is the couple must live together before the wedding.

A short time after the marriage, the client died, and sure enough, the attorney filed a spousal property petition.

Eventually Ms. McKissock was retained by the niece to try to void the marriage. The litigation was a struggle because California law makes it very difficult to void a marriage. But eventually, Ms. McKissock prevailed. The marriage was voided, and the attorney was disbarred.

For another creepy, but true, tale, read my prior post about Senator Ralph Dills,who also became prey to a predator gold digger, who happened to be his step daughter.

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