• Family Of Decedent Not Barred From Bringing Elder Abuse Claim Against Decedent’s Wife Who Was Previously Determined To Be An Omitted Spouse
  • September 6, 2011 | Author: Linda M. Monje
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation
  • In Estate of Dito, (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., July 29, 2011), a court of appeal considered whether the family of a decedent was barred from bringing an elder abuse claim against a decedent’s wife because an earlier ruling by the court held that the wife was entitled to a share of the estate as an omitted spouse. The court of appeal held the family was not barred from litigating the elder abuse claim because the issue in the current case is different from the issue presented in the previous appeal where the court held that the wife was an omitted spouse.


    Elenice Dito worked as a live-in housekeeper for Frank Dito and his wife Rosana. Elenice’s visa did not allow her to work legally as a housekeeper for the Ditos. Rosana died in December 1995. Elenice continued to live with Frank Dito and care for him. In August 1997, Elenice and Frank were married. Frank was 94 years old and Elenice was 28 years old when they married. They entered into a prenuptial agreement which provided that each waived his or her right “to alimony, maintenance, or spousal support in the event of divorce, death or marriage.”

    Frank died in December 2004. Elenice filed a petition for letters of administration. Frank’s daughter, Barbara Merritt, filed a competing petition claiming that Frank’s will did not mention Elenice. Barbara withdrew her petition after her son Terrence filed a petition to administer the estate. Elenice sought her share of Frank’s estate as an omitted spouse. The trial court found Elenice is the surviving spouse of Frank and entitled to a share of his estate. The court also found the prenuptial agreement was invalid. Terrence appealed asserting that the marriage between Elenice and Frank “was void because it was entered into for the sole purpose of allowing an illegal immigrant to remain in the United States.” The court of appeal found Terrence lacked standing to challenge the validity of Frank’s marriage and that the prenuptial agreement was invalid.

    Barbara filed a petition with the trial court alleging that Elenice had committed elder abuse against Frank and should be deemed to have predeceased Frank pursuant to Probate Code section 259. Barbara alleged Elenice paid her friends $19,357 from her joint account with Frank. The trial court granted judgment in favor of Elenice finding that her share of Frank’s estate had been determined in the previous holding of the trial court, as affirmed by the court of appeal, and that Barbara is barred from relitigating Elenice’s right to receive a share of the estate.


    The court of appeal held Barbara’s petition that alleged elder abuse is not barred by the doctrine of res judicata. Res judicata “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” All claims that “are based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date.” A claim that is raised in a subsequent lawsuit is “‘based on the same cause of action’ as one asserted in a prior action if they are both premised on the same ‘primary right.’” A primary right is the right of a plaintiff “to be free from a particular injury, regardless of the legal theory on which liability for the injury is based.” Therefore, “[t]he scope of the primary right . . . depends on how the injury is defined.”

    The trial court had found that the primary right in the first judgment and also in the petition filed by Barbara was the right of Elenice to receive a share of Frank’s estate as his surviving spouse. However, the court of appeal noted that the primary right advanced by Elenice in the former proceeding was her right to receive a share of Frank’s estate as an omitted spouse under Probate Code section 21610. Section 21610 provides that except in certain exceptions established by statute, “if a decedent fails to provide for a surviving spouse in a testamentary instrument executed before the marriage to the surviving spouse, the omitted spouse is entitled to receive a share of the decedent’s estate as provided in the statute.”

    The court of appeal found the primary right in Barbara’s second petition is different from the one considered in the prior proceeding. The issue in the second proceeding is whether Elenice committed financial elder abuse against Frank. The court concluded that “the primary right addressed by [Barbara’s] petition is that of Frank not to be abused or defrauded.” This right belongs to Frank and those interested persons who are entitled to assert it for him. The allegations of elder abuse have no bearing on whether Elenice is an omitted spouse because elder abuse is not one of the exceptions governing when an omitted spouse is precluded from receiving a share of a decedent’s estate. The court found, “even if the elder abuse issue had been raised in the prior proceeding, it would have been improper for the court to rely on a determination that Elenice committed financial elder abuse as the basis for denying her entitlement to a share of the estate under section 21610 et seq.”

    The purpose of the elder abuse statute is “to deter the abuse of elders by prohibiting abusers from benefiting from the abuse.” Subdivision (a) of Probate Code section 259 provides, in part, the following: “‘Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c)’ where it is proven that the person is liable for elder abuse of the decedent, acted in bad faith, and was reckless, oppressive, fraudulent, or malicious in the commission of the abuse.” (Emphasis added). Subdivision (c) provides, “Any person found liable under subdivision (a) . . . shall not (1) receive any property, damages, or costs that are awarded to the decedent’s estate in an action described in subdivision (a) . . . , whether that person’s entitlement is under a will, a trust, or the laws of intestacy . . . .”

    Section 259 only deems that the abuser predeceased the decedent to the extent that the abuser “would have been entitled through a will, trust, or laws of intestacy to receive a distribution of the damages and costs the person is found to be liable to pay to the estate as a result of the abuse.” The court concluded, “Section 259 does not necessarily eliminate the abuser’s entitlement to a share of the estate; it simply restricts the value of the estate to which the abuser’s percentage share is applied and prevents that person from benefiting from his or her own wrongful conduct.” A determination of elder abuse would not affect the prior determination by the court that Elenice is an omitted spouse and Elenice, therefore, retains her share of Frank’s estate. However, Elenice “is not allowed to share in any damages and costs she could be liable to pay the estate as a result of the alleged elder abuse.”

    The court held that Barbara’s petition for elder abuse is not barred on the ground of res judicata. The petition for elder abuse “involves a different primary right than the one litigated in the prior proceeding.”