Disincentivizing Elder Abuse through Disinheritance: Revamping California Probate Code § 259 and Using It as a Model

I. INTRODUCTIONPolice found Ms. Brown, a seventy-four-year-old woman, partially fused to an arm chair surrounded by her own filth.1 Her son and primary caretaker, James Owens, left her in the chair for days, allegedly complying with her request to let her die at home.2 Luckily for Ms. Brown, James tried to endorse her social security check, and authorities eventually found her.3 Ms. Brown was pried from her arm chair and died of a stroke in the hospital several days later, and James was eventually sentenced to one year in prison.4 Although it is shocking that police found Ms. Brown in such a life-threatening and atrocious condition, it is almost equally shocking that nothing in Missouri's elder abuse statutes would keep James from inheriting from his mother's estate.5Accounts like this are disconcerting for several reasons. First, for every disheartening story of elder abuse, there are several-perhaps dozens of-other stories that are never reported. Second, abusers have an eighty-four percent chance of living in a state that has not yet enacted a statute that disinherits elder abusers.6 Third, even in the eight states that have recognized that stories like Ms. Brown's are a major problem,7 the statutes that states have enacted to deal with this problem fail to provide strong incentives for people closest to elders to report abuse.Existing scholarship tends to welcome elder abuse disinheritance statutes without extreme criticism, noting their potential deterrent effects.8 However, I argue that these statutes have severely limited their potential deterrent effects by relying too strongly on antiquated notions of inheritance rights, by refusing to treat many forms of elder abuse as perpetrations that can be deterred by probate law, and by refusing to disengage themselves from criminal law.Most enacted elder abuse disinheritance statutes suffer from one of two common deficiencies. First, six of the eight states that have enacted such statutes require a criminal conviction, which deprives family members of an incentive to report and prosecute the abuse because they may lack evidence to support a conviction beyond a reasonable doubt. Second, three of the states provide for disinheritance only in cases of financial elder abuse, relying on false ideas about which kinds of abusive acts actually relate to inheritance.California's statute does not suffer from the foregoing deficiencies, but it is particularly weak because it merely offsets the amount that an abuser would receive through inheritance by the amount of any judgment awarded to the abused elder's estate.9 These statutes provide a poor guide for states that are considering such legislation, as evidenced by a recent proposal in Connecticut that perpetuates many of their shortcomings.10 Figure 1 outlines the current condition of elder abuse disinheritance statutes in the eight states that have passed them.Several authors have criticized California's incomplete effort at disincentivizing elder abuse,11 but none have proposed language to fix this statute. Small changes in California's elder abuse disinheritance statute could transform it into a model statute that effectively disincentivizes many forms of elder abuse while still respecting testamentary freedom of elders, and I propose such changes in this Comment. The most effective way to ensure that states are aware of this model statute would be to include it in the Uniform Probate Code.12Following this introduction, Part II explains why treating elder abuse as a probate law problem-and not just a criminal law problem-will successfully supplement state criminal elder abuse statutes by disincentivizing elder abuse by family members. Part II also explains why enacting elder abuse disinheritance legislation falls clearly within states' powers under the Constitution, even if it is a break from antiquated notions of inheritance rights. Part III explains why the common law doctrine of undue influence is inadequate to prevent or remedy elder abuse. …