Family Law Issues in Conservatorships and The Barefoot Case Impact on Trust Litigation


Yasha Bronshteyn’s first speaking engagement of 2020 was the continuing legal education seminar for the Trust and Estates Section of the Santa Monica Bar Association.  On January 30, 2020, at the JW Marriott Santa Monica Le Merigo, Yasha Bronshteyn of Ginzburg & Bronshteyn, APC, presented on the family law issues in conservatorship proceedings.  Issues included whether a person under a conservatorship can determine that they want  to marry or divorce their souse.  Probate Code §1900 – The appointment of a conservator of the person or estate or both does not affect the capacity of the conservatee to marry or to enter into a registered domestic partnership. The case that is directly on point is IRMO Greenway 217 Cal.App.4th 628, 639 (2013).  The issue being – Did Mr. Greenway have capacity to divorce Mrs. Greenway?  The analysis must start with Probate Code Section 810 (Rebuttable presumption all persons have capacity to make decisions and be responsible for their acts or decisions, (b) – Person with mental or physical disorder may still be capable of…marrying and Probate Code Section 811 (Lack of capacity if mental deficit(s) significantly impare person’s ability to understand and appreciate the consequences of his or her actions regarding the type of action or decision they are undertaking).

Another issue discussed was the Family Code provision that remedies for a spouse’s breach of the fiduciary duty owed to the other spouse when the breach falls within the ambit of the Civil Code definition of fraud shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty, is that an award of attorney fees is discretionary, and over and above the mandatory award of the entire asset at issue. West’s Ann.Cal.Civ.Code § 3294West’s Ann.Cal.Fam.Code §§ 721(b)1101(h).  An important case in this area is In re Marriage of Rossi, 90 Cal.App.4th 34 (2001) 108 Cal.Rptr.2d 270, 01 Cal. Daily Op. Serv. 5307, 2001 Daily Journal D.A.R. 6401.  The Rossi matter concerned one spouse filing for divorce while trying to secret her lottery winnings from her husband.  The failure to properly disclose and the breach of the fiduciary duty resulted in the breaching spouse forfeiting the entire lottery winning to the other spouse.

Mr. Bronshteyn’s practice focuses on complex estate and trust litigation, probate and trust administration, conservatorship, and family law matters.  Mr. Bronshteyn is actively engaged in the Los Angeles County Bar Association (LACBA), as a member of the Executive Committee of the LACBA Trust & Estates Section.

Although not a subject for the January 30, 2020, seminar the California Supreme Court just issued a unanimous opinion in Barefoot v. Jennings (2020) reversing a controversial opinion from Northern California (Tuolumne County).  A former beneficiary of a trust, Joan Mauri Barefoot, challenged the validity of eight amendments to and restatement of the Trust executed by the Settlors, her parents, in a three year period which resulted in Joan’s disinheritance and removal as successor trustee. Joan’s sister, Shana Wren, the current successor trustee, benefited as a result of the challenged amendments with a larger share of the trust and the appointment as successor trustee. Joan filed a Trust contest challenging the validity of the 17th through 24th amendments of the Trust under Probate Code Section 17200, alleging that the settlor was not competent at the time she executed the documents and that said execution was a result of Shana’s undue influence and fraud. Joan alleged she had standing under Probate Section 17200 because she a beneficiary and trustee of a prior version of the Trust (16th Amendment) which would be reinstated if Joan were successful in her challenge. Shana filed a motion to dismiss the Trust contest on the grounds that Joan lacked standing under Probate Code Section 17200 because she was neither a beneficiary nor trustee of the Trust under the latest iteration. The Trial Court found in Shana’s favor and dismissed Joan’s Petition. The Court of Appeal affirmed. The Supreme Court reversed.  The California Supreme Court determined that: “Probate Code section 17200 grants standing in probate court to a disinherited beneficiary who seeks to challenge a trust instrument or amendment that eliminated his or her beneficial interest.  Reading section 17200 to limit standing in probate court to current beneficiaries only would be inconsistent with the statutory scheme as a whole and the commonsense meaning of the section.  Trust contests should be decided by the probate court.”

Standing is the ability of a party to bring a lawsuit in court based upon their stake in the outcome. A party seeking to demonstrate standing must be able to show the court sufficient connection to and harm from the action challenged. The Court found that Trust contests should be decided by the probate court.  If a determination that a trust instrument or amendment is invalid would render a claimant a beneficiary of the trust, then such claimant has standing to bring a contest in probate court. The statutory scheme provides an orderly and expeditious mechanism for limited challenges to a trust, so that they can be litigated early in the probate process, and in probate court.

Please contact an attorney to properly understand your rights and obligations as they relate to all aspects of family law, conservatorships, trust and estates.   It is crucial to have appropriate advice throughout all stages of litigation. We provide invaluable, creative, efficient and cost-effective legal services. To discuss your needs and discover your options, consult the Los Angeles incapacity and estate planning attorneys at Ginzburg & Bronshteyn, APC. We serve clients in Los Angeles, Orange County, Ventura County, and throughout Southern and Northern California including Agoura Hills, Berkeley, Beverly Hills, Calabasas, Camarillo, Encino, Hidden Hills, Irvine, Lake Sherwood, Malibu, Marin County, Oxnard, Pasadena, Palo Alto, San Francisco, San Rafael, Santa Barbara, Santa Monica, Simi Valley, Tarzana, Thousand Oaks, Torrance, West Los Angeles,Westlake Village, and Woodland Hills. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. If you or someone you know is dealing with a dispute over the administration or execution of trust or estate in California, you should contact an experienced trusts and estates litigation attorney to ensure your interests are represented. We have developed a reputation for effective representation in complex and sophisticated matters as we guide you through the complex legal process. We are experienced in obtaining and defending against conservatorships.  If you have questions about a loved one’s mental capacity, call the law firm of Ginzburg & Bronshteyn, APC at (310) 914-3222, (415) 465-6555, or (818) 787-1011, or reach us by using our online contact form.

Partners Alexander Ginzburg and Yasha Bronshteyn have each been named by their peers for inclusion in the 2020 Super Lawyers list. Each year, only five percent of lawyers throughout California are named by the research team to be a ‘Super Lawyer’. Alexander Ginzburg was recognized as ‘Top Rated Family Law Attorneys in Southern California.’ Yasha Bronshteyn was recognized as ‘Top Rated Estate & Trust Litigation Attorneys in Southern California.’ Super Lawyers, part of Thomson Reuters, is a rating of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.