## Facts

- Hildegard Lee Borelli married Michael J. Borelli in 1980 after signing an antenuptial agreement.
- During the marriage, Michael experienced serious health problems and told Hildegard he intended to leave her specified real and personal property.
- In August 1988, Michael suffered a stroke and repeatedly expressed that he wanted to leave institutional care and return home.
- Hildegard alleged that she agreed to provide all necessary nursing, medical, and personal care for Michael at home, including 24-hour care for a substantial period, in exchange for Michael’s promise to transfer enumerated assets to her.
- Hildegard alleged full performance of the promised care until Michael’s death in January 1989.
- Michael’s will did not transfer all allegedly promised property to Hildegard; much of the estate went to his daughter, the executor.
- Hildegard sued the executor for specific performance of the alleged contract.
- The trial court sustained a general demurrer without leave to amend and dismissed the action, concluding the alleged agreement lacked consideration and was void as against public policy.

## Issues

1. Whether a spouse’s promise to provide nursing and personal care to an ill spouse at home constitutes consideration for a promised transfer of property, or instead is performance of a pre-existing legal duty.
2. Whether an agreement to compensate a spouse for providing such care during marriage is void as against public policy.

## Decision

- The Court of Appeal affirmed the judgment of dismissal.
- The court held the alleged agreement lacked consideration because the promised care fell within the spouses’ pre-existing statutory duty of mutual support.
- The court held the alleged agreement was also unenforceable as contrary to public policy insofar as it sought extra compensation for performance of ordinary marital obligations.
- A dissent would have treated the alleged 24-hour nursing care as potentially beyond the statutory duty of support and therefore capable of supporting a contract.

## Legal Principles

- Performance of a pre-existing legal duty is not valid consideration for a new promise.
- California’s statutory duty of spousal support is mutual and may include caring for an ill spouse.
- Contracts between spouses that bargain for extra compensation in exchange for performing duties imposed by the marital relationship are unenforceable on public policy grounds.

## Conclusion

The court refused to enforce an alleged promise to transfer property in exchange for one spouse’s home nursing care of the other, holding that such care was already required by the spouses’ statutory duty of support and that bargaining for added compensation for those marital duties is contrary to public policy.


Borelli v. Brusseau, 12 Cal. App. 4th 647 (Ct. App. 1993)