In a previous article, we discussed the omitted spouse statute in California, which provides for the decedent’s surviving spouse when the decedent has failed to provide for said spouse in their will or trust.

One of the major exceptions to the omitted spouse statute in California is what is called a “care custodian.”

Care Custodian Defined

A “care custodian” is explicitly defined in California Probate Code Section 21362 as “a person who provides health or social services to a dependent adult,” with “health or social services” defined to include “services provided to a dependent adult because of the person’s dependent condition, including, but not limited to, the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking, and assistance with finances.”

Probate Code Section 21366 defines a “dependent adult” as either:

• A person 65 years of age or older and either the person is unable to provide properly for their personal needs for physical health, food, clothing, or shelter or due to one of more deficits in mental functions the person has difficulty managing their own financial resources or resisting fraud or undue influence, or

• A person 18 years of age or older and either unable to provide properly for their personal needs for physical health, food, clothing, or shelter, or due to one or more deficits in mental functions the person has substantial difficulty managing their own financial resources or resisting fraud or undue influence.

Under Probate Code Section 21611(d)(1), the surviving spouse will NOT be entitled to recover under California’s omitted spouse statute if both of the following apply:

• The surviving spouse was a “care custodian” of the decedent who was a dependent adult and the marriage commenced while the care custodian provided services to the decedent or within 90 days after those services were last provided to the decedent.

• The decedent died less than six months after the marriage commenced.

However, Probate Code Section 21362 does allow for an exception for someone who acts as a caregiver for the decedent but does not receive compensation for services rendered.

Specifically, such a person is NOT a care custodian under the code section if all the following apply:

• The caregiver had a preexisting personal relationship with the decedent at least 90 days before the caregiver started providing services.

• The personal relationship existed at least 6 months before the decedent’s death.

• If the decedent was admitted to hospice care, then the personal relationship must have existed prior to the date of the decedent’s admission into hospice care.

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