Don't Let Your Uncle Secretly Marry His Estate Planning Attorney

Financial elder abuse is a big problem. Many states, like California, have passed laws to make it difficult for caregivers to inherit from their elderly patients because there is so much room for fraud and undue influence in those relationships. 

In California, an elderly person cannot name a non-family caregiver as a beneficiary in his will or living trust unless he obtains a certificate of independent review from an attorney to confirm his competency and to rule out fraud or undue influence. The certificate of independent review must be prepared by an independent attorney, not the estate planning attorney.

Unfortunately, there is a loophole in the caregiver law. The loophole is marriage. If the caregiver and elderly person enter into a valid marriage, anything goes. He can name his caregiver/spouse as a beneficiary in his will or trust without needing a certificate of independent review. And, as a result of the omitted spouse rule, once he is married, his caregiver/spouse gains a vested interest in his estate even if he doesn't name her in his will or living trust. 

Under California Probate Code 21610, if a decedent fails to provide in his will or trust for his surviving spouse who married the decedent after executing the decedent's will or trust, the omitted spouse will receive half of his community property.

The Case of Thor Tollefsen

The case of Linday Lowney, a 54-year-old estate planning attorney, who married Thor Tollefsen, her 85-year-old Bay Area client, who had cancer and was barely competent, presents a dramatic example of the marriage loophole. Lowney learned that Tollefsen was not married, had no children, had a good-sized estate, and had a short life expectancy. Bingo. She knew that under California law, if she married him, she would get half his estate.

Since this was not a typical courtship, she married him in a San Francisco County Clerk's office under the California Confidential Marriage Act, which allows a marriage without public notice. However, for a confidential marriage to be valid, the couple must live together. They never lived together.

Unbeknownst to Lowney, Tollefson had a sister and two nieces in Norway. The nieces were flight attendants and periodically flew to San Francisco, and when there, would visit their Uncle Thor. During one such meeting, Uncle Thor told them he had just married, but he wasn't living with his wife, and he was confused about the relationship. His nieces thought this was odd, but they didn't pursue it.

Sometime later, Uncle Thor called his nieces and said he was fed up with his wife because he could not reach her, and she was not taking care of him as promised. A few months later, he died.

His nieces eventually discovered the nature of their Uncle's marriage to his estate planning attorney, and they hired San Jose attorney Ellen McKissock. McKissock was able to void the marriage on the grounds that Lowney and Tollefson had never lived together. With the marriage void, Lowney could not inherit under the omitted spouse rule. And eventually, the California State Bar brought charges against Lowney, and she was disbarred.

Unfortunately, the case of Thor Tollefson is not unique. Financial elder abuse is on the rise as seniors are living longer, are wealthier, and are often alone. While laws have been put in place to protect vulnerable elderly individuals from undue influence and fraud, a significant loophole exists when it comes to marriage.