UNTIL DEATH DO US PART: PART III: THE LITIGATION OF SPOUSAL FIDUCIARY BREACHES UNDER THE FAMILY CODE IN THE POST-DEATH SETTING

Written by James P. Lamping, Esq.^*

I. SYNOPSIS

Every marriage will end. Some marriages end in divorce, while others end upon death. The property rights of the respective spouses must be determined under either scenario. Previous articles by this author have discussed the application of family law authority in the post-death setting to determine the interests of the respective spouses in comingled community and separate property.⁰¹ But this is not the only area in which the legal principles commonly used in divorce proceedings also apply when a marriage instead ends upon death.

The existence of a fiduciary relationship between spouses has significant implications in determining the effect of transactions between spouses when property rights are adjudicated upon divorce. These same principles generally also apply in financial elder abuse litigation involving interspousal transactions when a marriage instead ends upon death. While the provisions of the Family Code relating to transactions between spouses can be consequential in divorce proceedings, they can be downright devastating when combined with the authority relating to financial elder abuse.