"I DO … OWE YOU WHAT NOW?": SPOUSAL FIDUCIARY DUTIES AND THEIR IMPACT ON TRUST AND ESTATE PRACTITIONERS

By Robert Gorini, Esq.,* Ryan Cunningham, Esq^.** and Michael Gorini, Esq.*

I. INTRODUCTION AND OVERVIEW

The United States and California constitutions protect marriage as a fundamental right.¹ The Supreme Court calls the institution "a keystone to the Nation’s social order."² In an opinion foreshadowing much of the recent right-to-marriage litigation, the Supreme Court of Massachusetts observed that marriage "fulfils yearnings for security, safe haven, and connection that express our common humanity," that "the decision whether and whom to marry is among life’s momentous acts of self-definition" and that "the benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death."³

This article will not touch every aspect of life and death. Instead, the authors explore the rights and duties flowing from the esteemed institution, in particular those rights and duties as they intersect with rising societal concerns with elder abuse.⁴ Specifically, this article examines those portions of the Family Code providing the legal foundation for spousal fiduciary duties; the Lintz v. Lintz⁵ decision applying those code sections in the estate planning context; the issues facing estate planning attorneys as they navigate this field; and the authors’ thoughts on balancing the competing interests involved in preserving access to the right to marry, while protecting elders (and individuals with diminished legal capacity) from abuse.