It is well established, both normatively and legally, that a parent is responsible for the care and maintenance of their children. However, many people may be surprised to learn that the inverse could be true as well. California is one of the numerous states with filial responsibility laws on the books, which govern this issue. What are filial responsibility laws and how do they relate to estate and trust litigation? Keep reading to explore Keystone Quarterly’s in-depth analysis.
Keep reading to find out more below.
What Is Filial Responsibility?
Filial responsibility laws require adult children to support their infirm or indigent parents. Specifically, California Family Code section 4400 (“FC 4400”) states that, “Except as otherwise provided by law, an adult child shall, to the extent of the adult child’s ability, support a parent who is in need and unable to self-maintain by work.”
Although relatively obscure, especially in the context of trust and estate litigation, the court’s interpretation of FC 4400 and its predecessor statute through the years is surprisingly well defined, perhaps giving FC 4400 teeth for its use to be expanded by estate and trust litigators.
What Is the History of California Filial Responsibility Laws?
The duty of adult children to support their indigent parents has been long established in California. The predecessor to FC 4400 was first codified in California in 1872.[1] In describing the scope and origin of the duty, the court in Swoap v. Superior Court [2] noted that the duty of adult children to support parents in need is “deep rooted and of venerable ancestry.” Swoap traces the duty back to at least the year 1601, as an aspect of the English Elizabethan Poor laws, which are an early example of social welfare statutes.
The normative justification to impose these duties on adult children appears to be that the state should not be responsible for supporting a person who has family members who could otherwise provide that support themselves. Since being codified in 1872, the duty that an adult child has to support their indigent parents has remained relatively unchanged by the California legislature.
Are Filial Responsibility Laws Enforced?
As one would expect, FC 4400’s validity has been challenged on the grounds that it violates substantive due process, placing an unenforceable burden on adult children to support their parents. However, the Court in Gluckman v. Gaines[3] held that the application of the statutory predecessor to Family Code 4400 was constitutionally permissible so long as the duty of an adult child to support their parents, factored in the child’s ability to pay and considered the extent of the parent’s ability to support themselves.
The legislature has codified the factors to be considered in determining whether an adult child is legally responsible for the payment of their parent’s support.[4] Specifically, the court looks at the earning capacity and needs of each party, their obligations and assets, age and health, standard of living, and other factors the court deems just and equitable. So, the duty of a child to support their indigent parent is not absolute, but is contingent on that child’s ability to support their parent and the extent to which the parent requires support. Notably, a parent need not be deemed destitute for a child to be required to support them, nor does a child need to be deemed of particular well means to be required to support their parent.[5] Thus, Gluckman found that the degree to which an adult child is required to financially support their parent must be determined based on the particular facts of each case.
Family Code section 4403 limits the parties who can bring an action under FC 4400 to two classes of plaintiffs: (1) actions brought by the county attempting to recoup support payments made by county agencies to a parent who has a child that could have otherwise provided for their support; and (2) cases where a parent themself seeks support from their child.
The county is limited to seek recompense insofar as it has provided aid above what is required to be paid under Welfare and Institutions Code section 2000 et seq. Significantly, a review of the case law has demonstrated that various counties in California actively seek reimbursement from the children of persons the county is financially supporting. Moreover, Family Code section 4403(c), allows the Court to award attorney’s fees to the county for pursuing an action under this section, placing an additional potential burden on children who fail or refuse to support an indigent parent.[6]
Parents themselves are also allowed to initiate actions seeking financial support from their adult children. When pursuing support from their children, the court will look at the parent’s children collectively, as each child must support the parent in proportion to their ability to do so.[7] Surprisingly, this is true even if a parent is living with one child and there are other children of sufficient means who are able to provide support to the parent.[8] In effect, one child could be deemed responsible for supporting a parent, while other children have no similar requirement.
Relatedly, a promise by a child to provide support to a parent is legally binding.[9] Thus, not only can a parent initiate an action seeking support from their children, but they can also seek the enforcement of a promise to provide support made by their children, likely opening up additional remedies related to the enforcement of said promise.[10]
Potential Use of Filial Responsibility Statutes in Trust and Estate Litigation
Although there is sparse case law considering FC 4400’s application in contexts outside of enforcing the general obligation of adult children to support their indigent parent, there may be scenarios that trust and estate litigators commonly encounter in which FC 4400 could potentially be used going forward.
Fiduciaries Acting on Behalf of the Parent
As FC 4403 makes clear, an action under section 4400 can be brought only by a county or the parent themselves. Notably, however, there is no limitation (either in statute or case law), that a person legally acting on behalf of the parent, could not bring an action for support under FC 4400. Specifically, a fiduciary, such as an attorney-in-fact or a conservator, acting on behalf of an indigent parent should be able to initiate an action seeking support from an adult child who has otherwise failed to provide such support. This should be kept in mind when representing persons legally authorized fiduciary to advocate for an indigent parent, where the indigent parent has children who could potentially contribute to their support.
Alternative to Suing Children for Recovery of Assets
Also, experienced litigators are likely to have encountered a set of circumstances where an adult child, taking advantage of their parent’s trust or diminishing mental capacity, misappropriates that parent’s assets during the parent’s lifetime. The parent, either themselves or through an agent, is then left to pursue legal action while also attempting to maintain themselves with limited income and resources.
In such a case, an action seeking support under FC 4400 could be brought as an alternative to or in tandem with elder financial abuse claims, Probate Code section 850 petitions, or related claims, to place further pressure on the child who allegedly stole from their parent. Moreover, since the support award is contingent on the parent’s ability to support themselves and the child’s ability to provide said support, and not on the actual assets that are the subject of the pending litigation, any support award could be levied on top of the value of the property recovered, and perhaps could still be deemed appropriate even if the parent is successful in recovering the property wrongfully taken from them.
Are you an indigent adult’s fiduciary seeking to enforce California’s filial responsibility laws? Call us today for help.
While not generally used in the context of trust and estate litigation, an understanding of the duty imposed by FC 4400 may allow the creative litigator to use the duty imposed on adult children to support their indigent parent in ways which it has not yet been applied. While FC 4400’s application is limited to a relatively small scope, its use should at least be considered anytime a practitioner is representing an indigent parent.
If you have questions or would like to bring a claim on behalf of an infirm or indigent adult concerning the filial responsibility of adult children, our probate attorneys may be able to help. Get in touch with us today to request your free consultation.
Sources
[1] See former Civ. C. §§ 206 and 242
[2] (1973) 10 Cal.3d 490.
[3] (1968) 266 Cal.App.2d 52.
[4] Fam. C. § 4404.
[5] See Janes v. Edwards (1935) 4 Cal.App2d 611 (holding that the duty of support imposed by the predecessor to Family Code section 4400 does not require a parent to be deemed destitute).
[6] Most of the cases brought to enforce Family Code section 4400 are, in fact, brought by the county in which the parent resides.
[7] See Gluckman v. Gaines, supra, note 3.
[8] See Britton v. Steinberg (1962) 208 Cal.App.2d 358 (holding that son of indigent mother was required to support mother, even though mother lived with daughter for the preceding forty years).
[9] Fam. C. § 4401.
[10] See Huntoon v. Powell (1928) 88 Cal.App.657 (enforcing an oral promise by son to pay indigent mother’s doctor bill).
