Fall 2015, Issue 4

Representing an Incompetent Spouse – Which Court, Family or Probate?


Be imaginative here. One spouse is incompetent. The other spouse is competent, but is acting disrespectfully, to the detriment of the financial interests of the incompetent spouse.
For example, husband’s wife of many years dies. At age 85, husband remarries second wife, age 65. Two years later, husband’s children report to you that husband is likely incompetent, he is being neglected, much of his estate has disappeared, and what remains will go to wife under husband’s new will. What is your advice on what can be done to protect husband?
What follows is intended to promote a robust discussion of the legal issues surrounding the representation of an incompetent spouse. These issues are far from settled.


First, retain an expert to evaluate whether husband suffers from any mental incapacity, and if so, at what level (the levels of incapacity are discussed below).

Second, identify husband’s interests that have been impaired or are at risk of being impaired.

Third, explore ways of protecting these interests outside of court.

Fourth, discuss whether any interests remaining at risk are sufficient to merit the investment of money required to seek protection from court.

Fifth, analyze which court to invoke, probate, family, or both.

Mental Capacity

“[T]estamentary capacity and marital capacity [to begin or end the marriage] have lower standards than for mental capacity, and a different burden of proof, from what is required before an elderly person diagnosed with mild dementia executes a contract.”1 For testamentary and marital capacity, “the threshold is low,” whereas for contractual capacity, the threshold is high.2
In summary, “we conclude mental capacity can be measured on a sliding scale, with marital capacity requiring the least amount of capacity, followed by testamentary capacity, and on the high end of the scale is the mental capacity required to enter contracts. The burden of proof on mental capacity changes depending on the issue; there is a presumption in favor of the person seeking to marry or devise a will, but not so in the context of a person executing a contract.”3

Summary Comparison of Probate and Family Courts

What They Have in Common: Both can address property and support issues.

What Family Can Do That Probate Cannot: Enter a judgment of dissolution of marriage or legal separation.

What Probate Can Do That Family Cannot: Marriage ends by divorce or death. While Probate Court cannot declare the former, it can achieve the effect of the latter. Specifically, the competent spouse shall be deemed to have predeceased the incompetent spouse if the former has abused or neglected the latter. Moreover, the Probate Court has authority to substitute its judgment for the benefit of the conservatee (such as making a will or terminating a joint tenancy).

Which Court Has the Resources to Process the Case More Quickly: This factor should be considered, if the answer is ascertainable, especially because of the age of the client and the risk of intervening death.

Death generally abates a pending action, both in Family Court and Probate Court. This risk may be lessened more in Family Court by the common practice of “reserving jurisdiction to the court” over a particular issue. That is, Family Court’s jurisdiction is not abated over any issue expressly reserved to the court, before death.4

Probate Court

Property: The court has authority to characterize property as between separate and community, and divide the latter.5

Management: The court can address issues relating to the management of community property.6
Restraining Orders: The court can issue ex parte restraining orders similar to those in the Family Code.7

Transactional Authority: The court can authorize a broad array of transactions involving the incompetent spouse.8

Enforcement of Fiduciary Duties: The court can “enforce the duty imposed by Sections 721 and 1100 of the Family Code with respect to the management and control of the community property and to obtain such relief as may be appropriate.”9

Spousal Support: The court can order the competent spouse in charge of income and property to pay spousal support to the incompetent spouse.10

Litigation Authority: The court can authorize the conservator to prosecute a legal separation or dissolution of marriage action in Family Court.11

Substituted Judgment: The court can step into the shoes of the incompetent spouse and make a wide range of decisions that are in the best interest of this spouse, such as, by way of illustration only, the “making of a will.”12

Fictional Death: A spouse (indeed, any person) who neglects or abuses the incompetent spouse, as defined legally, will be deemed to have predeceased the incompetent spouse. As a result, the perpetrating spouse shall take nothing from the incompetent spouse’s estate, once he or she dies.13

Conservatorship: A spouse or family member who believes a person is a candidate for a conservatorship will need to prove incapacity14 in Probate Court. The conservator will be a person capable of protecting the incompetent litigant’s rights independently from the rights of the competent spouse.15

The foregoing examples illustrate, but do not exhaust, the Probate Court’s authority to protect an incompetent spouse.

Family Court

Property and Support: The substantive issues of property and support are assumed known. The challenging aspects of representing an incompetent spouse in Family Court are the procedural issues that follow.

Guardian Ad Litem:16“When … an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.”17 The procedure for appointing a guardian ad litem (“GAL”) is outlined in the Code of Civil Procedure.18 Use of form FL-935 is arguably required in Family Court.

Note: A conservator can act as though he or she is the spouse, whereas the GAL cannot.

Petition for Legal Separation: In Caballero, 19 the court reversed the order dismissing wife’s Petition for Legal Separation filed through her GAL, and remanded the case to the trial court “to address remedies available to her under the Family Law Act.”20 These remedies are available to such a wife petitioning for legal separation “even if in fact incapable of expressing a knowing and informed desire to terminate her marriage …”21

Petition for Dissolution of Marriage – Straczynski

In Straczynski,22 wife was competent to request a divorce when she filed. Temporary orders were made, including spousal support. But otherwise, the case was not managed to finality. In the intervening years, wife’s mental health declined. The trial judge then dismissed the action, on his own motion. Wife appealed. While the court of appeal reversed the dismissal, it did not limit its ruling simply to the dismissal. Rather, it also instructed the trial court to dismiss the action, should wife not be able to testify, from her lips, that the differences between the spouses are irreconcilable. “As we will explain, the trial court erred in dismissing the action sua sponte. Accordingly, we reverse the judgment and we remand with instructions that the trial court issue an order to show cause regarding whether—as is required for the prosecution of a dissolution petition by a party who is subject to a conservatorship — Evelyn currently has the necessary capacity to express an intent to obtain a dissolution of her marriage to Charles on account of irreconcilable differences.”23

In particular, the court of appeal instructed the trial court on remand: “Several years have passed since the trial court’s initial determination of Evelyn’s competency, and circumstances suggest that Evelyn’s mental condition has changed. Therefore, a renewed factual inquiry into Evelyn’s competence is warranted in the dissolution action to ensure that the proceedings remain consistent with [previously held] … standards.”24 “We thus direct the trial court to issue an order to show cause on the issue of whether—as required by Higgason, Evelyn is currently capable, despite her status as a conservatee, of exercising a judgment and expressing a wish that the marriage be dissolved on account of irreconcilable differences. If the trial court finds Evelyn lacks the necessary capacity, it shall dismiss the action.”25

We should be asking questions:

The Straczynski court of appeal’s gratuitous remand instruction raises a number of important questions that need to be addressed and answered when representing a similar litigant. These questions, neutrally stated, for which this author expresses no opinion, include but are not limited to the following:

  • Did the Straczynski court of appeal misinterpret Higgason, or otherwise give undue weight to it, particularly when no other court in the intervening years since 1973 (when Higgason was decided) has similarly “Higgasoned” a petitioner?
  • Is the court of appeal’s remand instruction, itself, dictum?
    Does the law limit petitioner’s proof of irreconcilable differences to her lips, and her lips alone? Or can the court consider the totality of the evidence, including respondent’s lips? (See Fam. C. § 2311 [“irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved”]26
  • Does disabling wife from being a petitioner, merely because she is incompetent, but exposing her to being a respondent, should competent husband wish to file as petitioner, violate constitutional protections and the principle of mutuality?
  • Does a spouse forfeit her right to bequeath her separate property and her share of community property, merely because she is incompetent?
  • Does family law recognize a reverse bifurcation – for example, where support and property issues are resolved first, and the court reserves jurisdiction over marital status?

These questions are illustrative, not exhaustive.

This writer believes that until Stracynski is clarified, a Petition for Dissolution of Marriage filed for the benefit of an incompetent spouse will encounter resistance in Family Court – that is, it is a good candidate for being dismissed. The exception, as things presently stand, arguably is where the evidence of irreconcilable differences is undisputed, such as where the competent spouse has taken off his/her marital hat by cohabiting with someone else. Such a situation may shift the Family Court’s attention from the true marital intentions of the incompetent spouse, which cannot be expressed, to the true marital intentions of the competent spouse, which have been expressed (the same as if the competent spouse were petitioner).

Counseling an incompetent spouse as a potential adversary party against the competent spouse is perhaps the most challenging assignment for the family law attorney. Therefore, this is not a Lone Ranger assignment. Rather, the family law attorney should consult with a probate attorney to properly:

  • Identify the material interests of the incompetent spouse at risk;
  • Attempt to protect as many of these interests as possible, without help from the court; and
  • Carefully and thoughtfully consider which court, Probate or Family, will best protect the client, as to those interests remaining at risk that merit asking the court for help. ■

1 In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 643.

2 Ibid.

3 Id. at 639.

4 In re Marriage of Hilke (1992) 4 Cal.4th 215, 220.

5 Prob. C. §§ 2407, 3023, 3054, and 3087.

6 Prob. C. § 3051.

7 Compare Fam. C. § 2040 with Prob. C. § 3085.

8 Prob. C. §§ 3101, 3102.

9 Prob. C. §3057.

10 Prob. C. § 3080.

11 Prob. C. § 2462.

12 Prob. C. 2580.

13 Prob. C. § 259.

14 Prob. C. §§ 810-813.

15 Prob. C. § 2250, 28

16 CCP § 372

17 Id.

18 CCP § 373

19 In re Marriage of Caballero (1994) 27 Cal.App.4th 1139.

20 Id. at 1143.

21 Id. at 1150.

22 In re Marriage of Straczynski (2010) 189 Cal.App.4th 531.

23 Id. at 533 [emphasis added].

24 Citing In re Marriage of Higgason, 10 Cal.3d 476 (1973).

25 Id. at 541 [emphasis added].

26 In re Marriage of McKim (1972) 6 Cal.3d 673 [Justice Mosk’s dissenting opinion].