Family Law

Family Law News Issue 3, 2020, Volume 42, No. 3

The Few and Varying Published Decisions on the Presumption of Undue Influence

Elsa-Marie Medeiros

Elsa-Marie Medeiros has been a member of the Bar since 2019. She is an associate at Harris and Fraser, a family law firm in San Mateo County. She received her Juris Doctorate and certificate in Child Advocacy from UC Hastings College of the Law. She also served as an editor for the Hastings Law Journal. She graduated summa cum laude from the University of San Francisco with a Bachelor of Arts in Politics and earned a certificate in Human Rights from Stanford University. She is a Court-Appointed Special Advocate in San Francisco County and speaks fluent Portuguese.

The presumption of undue influence is a unique aspect of Family Code section 721(b) because it is not explicitly stated. It must be inferred. Generally, the presumption arises when one spouse obtains an advantage over the other spouse in an interspousal transaction. If the advantaged spouse fails to demonstrate to the court that the non-advantaged spouse was not unduly influenced in the transaction, the transaction is void and unenforceable.

Since Family Code section 721(b) came into effect twenty-six years ago on January 1, 1994, only eleven published cases comprehensively analyze the presumption of undue influence.1 One case, Marriage of Deluca, is currently not citable because it is scheduled for a rehearing.2 The shortage of published cases provides little guidance to advise clients and renders unpredictable court decisions. This is unsettling and deserves careful review.

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