A Surviving Omitted Spouse May Be Sued for Elder Financial Abuse in California

check sxchu notify muresan113.jpgA California appeals court ruled that a surviving spouse who was awarded a portion of a decedent’s estate pursuant to California Probate Code Section 21611, after initially being omitted from a will or other instrument, may be sued for financial elder abuse committed while the decedent was alive.

In Estate of Dito, Barbara Merritt, the daughter of Frank Dito filed a petition in trial court alleging that his wife, Elenice, committed financial elder abuse against him prior to his death. Merritt sought an order from the trial court stating Elenice should be treated as having predeceased Frank for purposes of distribution of the estate pursuant to California Probate Code Section 259. The trial court dismissed the petition on res judicata grounds due to the existence of previous litigation between the parties regarding the same matter. Merritt then filed an appeal with California’s First District.

The facts of the case surround a rather unusual marriage. In 1994, Brazilian national Elenice began working in violation of her visa as a housekeeper for an elderly couple, Frank and Roasana Dito. After Rosana died in 1995, Elenice continued on at the home to care for Frank. In 1997, 94-year-old Frank married 28-year-old Elenice. Prior to the couple’s marriage, however, they entered into a prenuptial agreement which stated that neither party had a right to alimony, maintenance, or support in the event of a divorce or the death of one of the parties.

After Frank died in 2004, both Elenice and Merritt filed separate petitions to administer his estate. The will and all other estate documents provided to the court listed only Rosana as Frank’s wife. In 2005, Elenice filed a petition with the court seeking a share of Frank’s estate as an omitted spouse. Following a bench trial, the court held the couple’s prenuptial agreement was unenforceable and Elenice was in fact Frank’s omitted spouse. The court also held that Elenice was entitled to a share of Frank’s estate pursuant to the probate code. The First District of California later affirmed the trial court’s decision and Merritt filed the case at issue.

According to the Appeals Court, the doctrine of res judicata did not apply to the second case as the primary rights involved in the two litigations were inherently different. The court went on to say the primary right at issue in the previous case was Elenice’s right to inherit. In the second case, Frank’s right to not be abused was the issue. Because the two rights were different, the court ruled that the latter case was not barred.

The First District also held that under Section 259 of the Probate Code, a spouse who has committed financial elder abuse is only disinherited to the extent of the abuse. Consequently, even if Elenice committed financial elder abuse she was still entitled to receive any inheritance above the amount of the alleged abuse.


No one expects to need an attorney after losing a parent or other loved one. Still, probate matters can be complicated and time-consuming. Call Ginzburg & Bronshteyn, LLP at (310) 914-3222 if you have questions or need assistance with an estate litigation matter. Our committed Beverly Hills estate litigation attorneys are available to assist clients throughout Southern California with all of their probate and trust litigation needs. At Ginzburg & Bronshteyn, our lawyers are dedicated to protecting the financial interests of individuals in Los Angeles, Hollywood, Santa Monica, West Los Angeles, and Beverly Hills. To discuss your probate matter with a hardworking attorney, please contact Ginzburg & Bronshteyn through our website today.

Additional Resources:

Estate of Dito, 198 Cal.App.4th 791 (2011).

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