Opinion
PERLEY, J.
Plaintiff and appellant Hildegard L. Borelli (appellant) appeals from a judgment of dismissal after a demurrer was sustained without leave to amend to her complaint against defendant and respondent Grace G. Brusseau, as executor of the estate of Michael J. Borelli (respondent). The complaint sought specific performance of a promise by appellant’s deceased husband, Michael J. Borelli (decedent), to transfer certain property to her in return for her promise to care for him at home after he had suffered a stroke.
Appellant contends that the trial court erred by sustaining the demurrer on the grounds that the “alleged agreement [appellant] seeks to enforce is without consideration and the alleged contract is void as against public policy.” We conclude that the contention lacks merit.
[650]*650Facts
The only “facts” we can consider on this appeal from the sustaining of a demurrer are those “material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) Since both parties’ briefs wander far from the allegations of the complaint we will set out those allegations in some detail.
On April 24, 1980, appellant and decedent entered into an antenuptial contract. On April 25, 1980, they were married. Appellant remained married to decedent until the death of the latter on January 25, 1989.
In March 1983, February 1984, and January 1987, decedent was admitted to a hospital due to heart problems. As a result, “decedent became concerned and frightened about his health and longevity.” He discussed these fears and concerns with appellant and 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.
In August 1988, decedent suffered a stroke while in the hospital. “Throughout the decedent’s August, 1988 hospital stay and subsequent treatment at a rehabilitation center, he repeatedly told [appellant] that he was uncomfortable in the hospital and that he disliked being away from home. The decedent repeatedly told [appellant] that he did not want to be admitted to a nursing home, even though it meant he would need round-the-clock care, and rehabilitative modifications to the house, in order for him to live at home.”
[651]*651“In or about October, 1988, [appellant] and the decedent entered an oral agreement whereby the decedent promised to leave to [appellant] the property listed [above], including a one hundred percent interest in the Sacramento property. ... In exchange for the decedent’s promise to leave her the property . . . [appellant] agreed to care for the decedent in his home, for the duration of his illness, thereby avoiding the need for him to move to a rest home or convalescent hospital as his doctors recommended. The agreement was based on the confidential relationship that existed between [appellant] and the decedent.”
Appellant performed her promise but the decedent did not perform his. Instead his will bequeathed her the sum of $100,000 and his interest in the residence they owned as joint tenants. The bulk of decedent’s estate passed to respondent, who is decedent’s daughter.
Discussion
“It is fundamental that a marriage contract differs from other contractual relations in that there exists a definite and vital public interest in reference to the marriage relation. The ‘paramount interests of the community at large,’ quoting from the Phillips case [Phillips v. Phillips (1953) 41 Cal.2d 869] is a matter of primary concern.” (Hendricks v. Hendricks (1954) 125 Cal.App.2d 239, 242 [270 P.2d 80].)
“The laws relating to marriage and divorce (Civ. Code, [former] §§ 55-181) have been enacted because of the profound concern of our organized society for the dignity and stability of the marriage relationship. This concern relates primarily to the status of the parties as husband and wife. The concern of society as to the property rights of the parties is secondary and incidental to its concern as to their status.” (Sapp v. Superior Court (1953) 119 Cal.App.2d 645, 650 [260 P.2d 119].)
“Marriage is a matter of public concern. The public, through the state, has interest in both its formation and dissolution. . . . The regulation of marriage and divorce is solely within the province of the Legislature except as the same might be restricted by the Constitution.” (Haas v. Haas (1964) 227 Cal.App.2d 615, 617 [38 Cal.Rptr. 811].)
In accordance with these concerns the following pertinent legislation has been enacted: Civil Code section 242—“Every individual shall support his or her spouse ....’’ Civil Code section 4802—“[A] husband and wife cannot, by any contract with each other, alter their legal relations, except as to property. . . .” Civil Code section 5100—“Husband and wife contract [652]*652toward each other obligations of mutual respect, fidelity, and support.” Civil Code section 5103—“[E]ither husband or wife may enter into any transaction with the other . . . respecting property, which either might if unmarried.” Civil Code section 5132—“[A] married person shall support the person’s spouse while they are living together. ...”
The courts have stringently enforced and explained the statutory language. “Although most of the cases, both in California and elsewhere, deal with a wife’s right to support from the husband, in this state a wife also has certain obligations to support the husband.” (In re Marriage of Higgason (1973) 10 Cal.3d 476, 487 [110 Cal.Rptr. 897, 516 P.2d 289], disapproved on other grounds in In re Marriage of Dawley (1976) 17 Cal.3d 342, 352 [131 Cal.Rptr. 3, 551 P.2d 323].)
“Indeed, husband and wife assume mutual obligations of support upon marriage. These obligations are not conditioned on the existence of community property or income.” (See v. See (1966) 64 Cal.2d 778, 784 [51 Cal.Rptr. 888, 415 P.2d 776].) “In entering the marital state, by which a contract is created, it must be assumed that the parties voluntarily entered therein with knowledge that they have the moral and legal obligation to support the other.” (Department of Mental Hygiene v. Kolts (1966) 247 Cal.App.2d 154, 165 [55 Cal.Rptr. 437].)
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Opinion
PERLEY, J.
Plaintiff and appellant Hildegard L. Borelli (appellant) appeals from a judgment of dismissal after a demurrer was sustained without leave to amend to her complaint against defendant and respondent Grace G. Brusseau, as executor of the estate of Michael J. Borelli (respondent). The complaint sought specific performance of a promise by appellant’s deceased husband, Michael J. Borelli (decedent), to transfer certain property to her in return for her promise to care for him at home after he had suffered a stroke.
Appellant contends that the trial court erred by sustaining the demurrer on the grounds that the “alleged agreement [appellant] seeks to enforce is without consideration and the alleged contract is void as against public policy.” We conclude that the contention lacks merit.
[650]*650Facts
The only “facts” we can consider on this appeal from the sustaining of a demurrer are those “material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) Since both parties’ briefs wander far from the allegations of the complaint we will set out those allegations in some detail.
On April 24, 1980, appellant and decedent entered into an antenuptial contract. On April 25, 1980, they were married. Appellant remained married to decedent until the death of the latter on January 25, 1989.
In March 1983, February 1984, and January 1987, decedent was admitted to a hospital due to heart problems. As a result, “decedent became concerned and frightened about his health and longevity.” He discussed these fears and concerns with appellant and 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.
In August 1988, decedent suffered a stroke while in the hospital. “Throughout the decedent’s August, 1988 hospital stay and subsequent treatment at a rehabilitation center, he repeatedly told [appellant] that he was uncomfortable in the hospital and that he disliked being away from home. The decedent repeatedly told [appellant] that he did not want to be admitted to a nursing home, even though it meant he would need round-the-clock care, and rehabilitative modifications to the house, in order for him to live at home.”
[651]*651“In or about October, 1988, [appellant] and the decedent entered an oral agreement whereby the decedent promised to leave to [appellant] the property listed [above], including a one hundred percent interest in the Sacramento property. ... In exchange for the decedent’s promise to leave her the property . . . [appellant] agreed to care for the decedent in his home, for the duration of his illness, thereby avoiding the need for him to move to a rest home or convalescent hospital as his doctors recommended. The agreement was based on the confidential relationship that existed between [appellant] and the decedent.”
Appellant performed her promise but the decedent did not perform his. Instead his will bequeathed her the sum of $100,000 and his interest in the residence they owned as joint tenants. The bulk of decedent’s estate passed to respondent, who is decedent’s daughter.
Discussion
“It is fundamental that a marriage contract differs from other contractual relations in that there exists a definite and vital public interest in reference to the marriage relation. The ‘paramount interests of the community at large,’ quoting from the Phillips case [Phillips v. Phillips (1953) 41 Cal.2d 869] is a matter of primary concern.” (Hendricks v. Hendricks (1954) 125 Cal.App.2d 239, 242 [270 P.2d 80].)
“The laws relating to marriage and divorce (Civ. Code, [former] §§ 55-181) have been enacted because of the profound concern of our organized society for the dignity and stability of the marriage relationship. This concern relates primarily to the status of the parties as husband and wife. The concern of society as to the property rights of the parties is secondary and incidental to its concern as to their status.” (Sapp v. Superior Court (1953) 119 Cal.App.2d 645, 650 [260 P.2d 119].)
“Marriage is a matter of public concern. The public, through the state, has interest in both its formation and dissolution. . . . The regulation of marriage and divorce is solely within the province of the Legislature except as the same might be restricted by the Constitution.” (Haas v. Haas (1964) 227 Cal.App.2d 615, 617 [38 Cal.Rptr. 811].)
In accordance with these concerns the following pertinent legislation has been enacted: Civil Code section 242—“Every individual shall support his or her spouse ....’’ Civil Code section 4802—“[A] husband and wife cannot, by any contract with each other, alter their legal relations, except as to property. . . .” Civil Code section 5100—“Husband and wife contract [652]*652toward each other obligations of mutual respect, fidelity, and support.” Civil Code section 5103—“[E]ither husband or wife may enter into any transaction with the other . . . respecting property, which either might if unmarried.” Civil Code section 5132—“[A] married person shall support the person’s spouse while they are living together. ...”
The courts have stringently enforced and explained the statutory language. “Although most of the cases, both in California and elsewhere, deal with a wife’s right to support from the husband, in this state a wife also has certain obligations to support the husband.” (In re Marriage of Higgason (1973) 10 Cal.3d 476, 487 [110 Cal.Rptr. 897, 516 P.2d 289], disapproved on other grounds in In re Marriage of Dawley (1976) 17 Cal.3d 342, 352 [131 Cal.Rptr. 3, 551 P.2d 323].)
“Indeed, husband and wife assume mutual obligations of support upon marriage. These obligations are not conditioned on the existence of community property or income.” (See v. See (1966) 64 Cal.2d 778, 784 [51 Cal.Rptr. 888, 415 P.2d 776].) “In entering the marital state, by which a contract is created, it must be assumed that the parties voluntarily entered therein with knowledge that they have the moral and legal obligation to support the other.” (Department of Mental Hygiene v. Kolts (1966) 247 Cal.App.2d 154, 165 [55 Cal.Rptr. 437].)
Moreover, interspousal mutual obligations have been broadly defined. “[Husband’s] duties and obligations to [wife] included more than mere cohabitation with her. It was his duty to offer [wife] his sympathy, confidence [citation], and fidelity.” (In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 922 [115 Cal.Rptr. 594].) When necessary, spouses must “provide uncompensated protective supervision services for” each other. (Miller v. Woods (1983) 148 Cal.App.3d 862, 877 [196 Cal.Rptr. 69].)
Estate of Sonnicksen (1937) 23 Cal.App.2d 475, 479 [73 P.2d 643] and Brooks v. Brooks (1941) 48 Cal.App.2d 347, 349-350 [119 P.2d 970], each hold that under the above statutes and in accordance with the above policy a wife is obligated by the marriage contract to provide nursing-type care to an ill husband. Therefore, contracts whereby the wife is to receive compensation for providing such services are void as against public policy; and there is no consideration for the husband’s promise.
Appellant argues that Sonnicksen and Brooks are no longer valid precedents because they are based on outdated views of the role of women and marriage. She further argues that the rule of those cases denies her equal protection because husbands only have a financial obligation toward their [653]*653wives, while wives have to provide actual nursing services for free. We disagree. The rule and policy of Sonnicksen and Brooks have been applied to both spouses in several recent cases arising in different areas of the law.
Webster’s New Collegiate Dictionary (1981) page 240 defines consortium as “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. (Elden v. Sheldon (1988) 46 Cal.3d 267, 277 [250 Cal.Rptr. 254, 758 P.2d 582].)
Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [115 Cal.Rptr. 765, 525 P.2d 669], held that a wife could recover consortium damages. The Supreme Court’s reasoning was as follows. “But there is far more to the marriage relationship than financial support. ‘The concept of consortium includes not only loss of support or services, it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more.’ [Citation.] As to each, ‘the interest sought to be protected is personal to the wife’ [citation] ....’’ (Rodriguez v. Bethlehem Steel Corp., supra, at pp. 404-405.) “The deprivation of a husband’s physical assistance in operating and maintaining the family home is a compensable item of loss of consortium.” (Id. at p. 409, fn. 31.)
In Krouse v. Graham (1977) 19 Cal.3d 59, 66-67 [137 Cal.Rptr. 863, 562 P.2d 1022], an action for the wrongful death of the wife, the husband was allowed to recover consortium damages “for the loss of his wife’s ‘love, companionship, comfort, affection, society, solace or moral support, any loss of enjoyment of sexual relations, or any loss of her physical assistance in the operation or maintenance of the home.’ ” The wife “had recently retired as a legal secretary in order to care for her husband, Benjamin, whose condition of emphysema, in turn, caused him to retire and necessitated considerable nursing services."
The principal holding of Watkins v. Watkins (1983) 143 Cal.App.3d 651 [192 Cal.Rptr. 54], was that a marriage did not extinguish a woman’s right to recover the value of her homemaker services rendered prior to the marriage. Much of the opinion is devoted to a discussion of Sonnicksen and Brooks. Those cases are approved by the court but not expanded to cover the period before marriage. (Id. at pp. 654-655.)
Vincent v. State of California (1971) 22 Cal.App.3d 566 [99 Cal.Rptr. 410], held that for purposes of benefit payments spouses caring for each other must be treated identically under similar assistance programs. In reaching such conclusion the court held: “Appellants suggest that one reason [654]*654justifying denial of payment for services rendered by ATD attendants who reside with their recipient spouses is that, by virtue of the marriage contract, one spouse is obligated to care for the other without remuneration. (Civ. Code, § 5100; Estate of Sonnicksen (1937) 23 Cal.App.2d 475, 479 [73 P.2d 643].) Such preexisting duty provides a constitutionally sound basis for a classification which denies compensation for care rendered by a husband or wife to his spouse who is receiving welfare assistance. [Citations.] ... [1] . . . But insofar as one spouse has a duty created by the marriage contract to care for the other without compensation when they are living together, recipients of aid to the aged, aid to the blind and aid to the disabled are similarly situated.” (Vincent v. State of California, supra, at p. 572.)
These cases indicate that the marital duty of support under Civil Code sections 242, 5100, and 5132 includes caring for a spouse who is ill. They also establish that support in a marriage means more than the physical care someone could be hired to provide. Such support also encompasses sympathy (In re Marriage of Rabie, supra, 40 Cal.App.3d at p. 922) comfort (Krouse v. Graham, supra, 19 Cal.3d at pp. 66-67) love, companionship and affection (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at pp. 404-405). Thus, the duty of support can no more be “delegated” to a third party than the statutory duties of fidelity and mutual respect (Civ. Code, § 5100). 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.” (Civ. Code, § 4100.)
We therefore adhere to the long-standing rule that 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.
We agree with the dissent that no rule of law becomes sacrosanct by virtue of its duration, but we are not persuaded that the well-established rule that governs this case deserves to be discarded. If the rule denying compensation for support originated from considerations peculiar to women, this has no bearing on the rule’s gender-neutral application today. There is as much potential for fraud today as ever, and allegations like appellant’s could be made every time any personal care is rendered. This concern may not entirely justify the rule, but it cannot be said that all rationales for the rule are outdated.
Speculating that appellant might have left her husband but for the agreement she alleges, the dissent suggests that marriages will break up if such [655]*655agreements are not enforced. While we do not believe that marriages would be fostered by a rule that encouraged sickbed bargaining, the question is not whether such negotiations may be more useful than unseemly. The issue is whether such negotiations are antithetical to the institution of marriage as the Legislature has defined it. We believe that they are.
The dissent maintains that mores have changed to the point that spouses can be treated just like any other parties haggling at arm’s length. Whether or not the modern marriage has become like a business, and regardless of whatever else it may have become, it continues to be defined by statute as a personal relationship of mutual support. Thus, even if few things are left that cannot command a price, marital support remains one of them.
Disposition
The judgment is affirmed. Costs to respondents.
Anderson, P. J., concurred.