Borelli v. Brusseau – Marital Contracts
Borelli v. Brusseau, 12 Cal. App. 4th 647, 16 Cal. Rptr. 2d 16 (1993).
NATURE OF THE CASE: Borelli (P), wife, challenged a judgment of dismissal after a demurrer was sustained without leave to amend her complaint against Brusseau (D), daughter of decedent and executor of his estate. P’s complaint sought specific performance of decedent’s promise to transfer property to her in return for her promise to care for him at home after he suffered a stroke.
FACTS: Borelli (P) and decedent entered into an antenuptial (i.e. prenuptial agreement or prenup) contract on April 24, 1980 and were married the next day. Borelli remained married to decedent until his death on January 25, 1989. During their marriage, decedent became concerned about his health and heart problems and discussed final dispositions of his property with Borelli. He told her that he intended to leave the following property to her. 1. An interest in a lot in Sacramento, California. 2. A life estate for the use of a condominium in Hawaii. 3. A 25 percent interest in Borelli Meat Co. 4. All cash remaining in all existing bank accounts at the time of his death. 5. The costs of educating decedent’s stepdaughter, Monique Lee. 6. Decedent’s entire interest in a residence in Kensington, California. 7. All furniture located in the residence. 8. Decedent’s interest in a partnership. 9. Health insurance for appellant and Monique Lee.
Decedent wanted to be cared for in his home and promised to leave the property to her if Borelli would care for him in his home for the duration of his illness. Borelli performed but the decedent did not honor his word as the will bequeathed Brusseau the sum of $100,000 and his interest in the residence that was owned as joint tenants. The bulk of the estate went to Brusseau, the decedent’s daughter.
Borelli sued the estate to enforce the promise by specific performance. Brusseau demurred and the trial court sustained the demurrer and dismissed the case without leave to amend. Borelli appealed.
ISSUE: May spouses legally contract for support between one another?
RULE OF LAW: No. Spouses may not legally contract for support between one another.
HOLDING AND DECISION (Perley): There is a public policy interest in the formation and dissolution of marriage. California Civil Code requires each of the following: Every individual shall support his or her spouse. A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property. Husband and wife contract toward each other obligations of mutual respect, fidelity, and support. Either husband or wife may enter into any transaction with the other respecting property, which either might if unmarried. A married person shall support the person’s spouse while they are living together.
A husband and wife assume mutual obligations of support upon marriage. These obligations are not conditioned on the existence of community property or income. Consortium is the legal right of one spouse to the company, affection, and service of the other. Only married persons are allowed to recover damages for loss of consortium. There is far more to the marriage relationship than financial support. The concept of consortium includes not only loss of support or services but also embraces such elements as love, companionship, affection, society, sexual relations, solace and more. The marital duty of support includes caring for a spouse who is ill.
Support in a marriage means more than the physical care someone could be hired to provide. The duty of support can no more be delegated to a third party than the statutory duties of fidelity and mutual respect. Marital duties are owed by the spouses personally. This is implicit in the definition of marriage as a personal relation arising out of a civil contract between a man and a woman.
A spouse is not entitled to compensation for support, apart from rights to community property and the like that arise from the marital relation itself. Personal performance of a personal duty created by the contract of marriage does not constitute a new consideration supporting the indebtedness, alleged in this case. Marriage is not a business proposition as it continues to be defined by statute as a personal relationship of mutual support. Marital support remains one of the things that cannot command a price.
DISPOSITION: Affirmed.
DISSENT (Poche): Had there been no marriage and had they been total strangers, there is no doubt Mr. Borelli could have validly contracted to receive her services in exchange for certain of his property. The mere existence of a marriage certificate should not deprive competent adults of the utmost freedom of contract they would otherwise possess.
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