San Diego Law Review

Library of Congress Authority File


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This Comment argues that California should require proof of an elder's marital capacity from an attending physician or mental health professional to ensure protection of elders whose mental capacity has declined to a point where they can no longer understand what marriage entails. Part II explores the problem of financial elder abuse and examines how it pertains to marriage in California. Part III explains the levels of capacity required to enter into marriage, create testamentary documents, and enter into binding contracts, and the reasons for these capacity requirements. Part IV discusses procedural and statutory safeguards from the law of trusts and estates. These safeguards are aimed at protecting testamentary intent, but unfortunately, they may inadvertently encourage financially exploitative marriages. Part V details the statutory requirements for family members to challenge the validity of an elder's marriage. It also describes the inadequacies of proposals that suggest that courts allow for post-death litigation to determine the elder's capacity on the elder's wedding day. Part VI describes the elements of this Comment's proposed marital capacity test and finds that the test is constitutionally permissive.

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