Amends TCA Title 30; Title 31; Title 32; Title 34; Title 35; Title 36; Title 39 and Title 71.

ON MARCH 14, 2024, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 2147, AS AMENDED. AMENDMENT #1 rewrites the bill to, instead, make the changes below to the law protecting elderly persons and disabled adults. UNLAWFUL MARRIAGE TO AN ELDERLY PERSON OR DISABLED ADULT This amendment provides that if a surviving spouse is found by a court of competent jurisdiction to have procured a marriage to an elderly person or disabled adult as part of a scheme to commit abuse or neglect, sexual abuse, financial exploitation, or theft of the elderly person's or disabled adult's real or personal property, or has otherwise procured marriage to the elderly person or disabled adult by fraud, duress, or undue influence, then the surviving spouse is not entitled to the following rights or benefits that inure solely by virtue of the marriage or the person's status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full and complete disclosure and knowledge of and capacity to understand the facts constituting such actions and both spouses subsequently ratified the marriage, only to the extent that the elderly adult or disabled adult is capable of ratifying such a marriage: (1) Any right or benefit under the law relevant to descent and distribution, administrations of estates, or wills; (2) Any right or benefit under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement; (3) Any right or benefit under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment; and (4) Any immunity from the presumption of undue influence that a surviving spouse may have under state law. This amendment requires the rights or benefits listed (1)–(4) above to pass as if the surviving spouse had predeceased the decedent if a court of competent jurisdiction finds that the surviving spouse is not entitled to the rights or benefits. CAUSE OF ACTION This amendment authorizes a challenge to a surviving spouse's rights or benefits under the law relevant to descent and distribution, administrations of estates, or wills to be maintained as a defense, objection, or cause of action by any interested person after the death of the decedent in any proceeding in which the fact of marriage may be directly or indirectly material. It is not necessary for a court, as part of any judgment, to declare a marriage void and unenforceable for a contestant to prevail in such a proceeding. This amendment provides that the contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured as part of a scheme to commit abuse or neglect, sexual abuse, financial exploitation, or theft of the elderly person's or disabled adult's real or personal property whether by fraud, deceit, coercion, or otherwise, or to otherwise procure marriage to the elderly person or disabled adult by fraud, duress, or undue influence. If ratification of the marriage is raised as a defense, then the surviving spouse has the burden of establishing, by clear and convincing evidence, the subsequent ratification by both spouses. However, such defense is not available if (i) the elderly person or disabled adult would otherwise lack the capacity to ratify; or (ii) abuse or neglect, sexual abuse, financial exploitation, or theft resulted from intentional, fraudulent, or malicious conduct by the surviving spouse. In all actions brought under this amendment, this amendment requires the court to award costs, including attorney's fees, to a contestant that prevails. When awarding costs and attorney's fees, the court may direct payment from a party's interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both. This amendment clarifies that the rights and remedies granted in this amendment are in addition to any other rights or remedies a person may have at law or equity. LIABILITY FOR OBLIGORS This amendment provides that an insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this amendment unless, before payment, the insurance company, financial institution, or other obligor received written notice of a claim pursuant to this amendment. The notice must be in writing and must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice. Permissible methods of notice include first-class mail, personal delivery, delivery to the person's last known place of residence or place of business, or a properly directed facsimile or other electronic message. To be effective, this amendment requires notice to a financial institution or insurance company to contain the name, address, and the taxpayer identification number, or the account or policy number, of the principal obligee or person whose life is insured and must be directed to an officer or a manager of the financial institution or insurance company in this state. If the financial institution or insurance company has no offices in this state, then the notice must be directed to the principal office of the financial institution or insurance company. This amendment provides that notice is effective when given, except that notice to a financial institution or insurance company is not effective until five business days after being given. STATUTE OF LIMITATIONS This amendment provides that, unless sooner barred by adjudication or estoppel, an interested person is barred from bringing an action under this amendment unless the action is commenced within four years after the decedent's date of death. A cause of action under this amendment accrues on the decedent's date of death. RIGHT OF ELDERLY PERSON OR DISABLED ADULT TO RECOVER Present law provides that an elderly person or disabled adult in that person's own right, or by conservator or next friend, has a right of recovery in a civil action for compensatory damages for abuse or neglect, sexual abuse or for theft of such person's or adult's money or property whether by fraud, deceit, coercion or otherwise. Such right of action against a wrongdoer must not abate or be extinguished by the death of the elderly person or disabled adult, but must pass as provided in existing law, unless the alleged wrongdoer is a family member, in which case the cause of action must pass to the victim's personal representative. This amendment adds to the present law by providing that an elderly person or disabled adult in that person's own right, or by conservator or next friend, has a right of recovery in a civil action for compensatory damages for abuse or neglect, sexual abuse, or financial exploitation by a caretaker. This amendment also adds to the present law by providing that if the personal representative is the alleged wrongdoer, then the cause of action must pass to any interested party that is not the alleged wrongdoer Present law provides that damages include compensatory damages and costs where it is proven that a defendant is liable for abuse or neglect, sexual abuse or exploitation or for theft of such elderly person's or disabled adult's money or property whether by fraud, deceit, coercion or otherwise. Costs include reasonable expenses. In addition, if it is proven upon clear and convincing evidence that abuse or neglect, sexual abuse or exploitation or theft resulted from intentional, fraudulent or malicious conduct by the defendant, a claimant is entitled to recover reasonable attorneys' fees. This amendment rewrites the present law, and, instead, provides that damages include compensatory damages and costs where it is proven that a defendant is liable for abuse or neglect; sexual abuse or exploitation; for theft of such elderly person's or disabled adult's money or property whether by fraud, deceit, coercion or otherwise; or for abuse or neglect, sexual abuse, or financial exploitation by a caretaker. Costs include reasonable expenses and reasonable attorney's fees. This amendment provides that in any will or estate contest provided under the law relevant to descent and distribution, administrations of estates, or wills, or in any proceeding contesting the validity of any gifts, bequests, or other transactions, a caretaker found liable under this amendment is in a per se confidential relationship with the elderly person or disabled adult so as to raise the presumption of undue influence requiring the caretaker to prove by clear and convincing evidence that the challenged bequest was fair. CARETAKER DEFINED As used in the present law, a "caretaker" means an individual or institution who has assumed the duty to provide for the care of the adult by contract or agreement and includes a parent, spouse, adult child or other relative, both biological or by marriage, who (i) resides with or in the same building with or regularly visits the adult; (ii) knows or reasonably should know of the adult's mental or physical dysfunction or advanced age; and (iii) knows or reasonably should know that the adult is unable to adequately provide for the adult's own care, but does not mean a financial institution as a caretaker of funds or other assets unless such financial institution has entered into an agreement to act as a trustee of such property or has been appointed by a court of competent jurisdiction to act as a trustee with regard to the property of the adult. This amendment adds to the present law definition by providing that a "caretaker" includes a person who resides in an elderly person's or disabled adult's personal residence and has assumed the duty to provide care for the elderly person or disabled adult or another person, including a spouse, child, or relative of the elderly person or disabled adult, who also resides in the elderly person's or disabled adult's personal residence and who knows or reasonably should know of the elderly person's or disabled adult's mental or physical dysfunction or advanced age. ON APRIL 8, 2024, THE HOUSE SUBSTITUTED SENATE BILL 2147 FOR HOUSE BILL 2420, ADOPTED AMENDMENT #1, AND PASSED SENATE BILL 2147, AS AMENDED. AMENDMENT #1 makes technical corrections.