In Re Marriage of Goldberg

McDANIEL, J. [*]

(1) This appeal presents, on undisputed facts, an issue of first impression, namely whether, under section 573, subdivision (a) of the Probate Code, [1] decedent's cause of action for nullity of marriage survived his death. The issue was joined when the special administrator of decedent's estate moved for an order substituting himself in as petitioner in decedent's action insofar as it sought to nullify the marriage, an action filed by decedent before his death. The trial court denied the motion. In its extensive minute order, the trial court stated, "[t]he issue framed by the motion is whether a nullity action prosecuted by a party survives his death. [¶] The answer to this question is in the negative." The court then cited, as controlling, Greene v. Williams (1970) 9 Cal. App.3d 559 [ 88 Cal. Rptr. 261 ] ( Greene ).

In Greene , the issue presented was "[c]an a parent annul a minor child's marriage after the child's death because the child married without parental consent?" ( Greene, supra, 9 Cal. App.3d 559, 561 .) In our view, the issue there presented is not the same as the one here. In Greene , the action was initiated by the decedent's mother…