by Quentin Fottrell
It was a prenuptial agreement, but our lawyers said it was poorly written and wouldn’t hold up in court.
My family is going through a big shock. My brother, sister and I found out that our elderly father secretly married his caretaker five years ago and didn’t tell us. We have a rich family fortune, and our father’s fortune is hundreds of millions of dollars.
This caregiver is 40 years younger than my father. Her visa was already invalid, because she didn’t go to school and stayed in the US longer than she was supposed to. She lived with my father for eight years, five of them were married.
My father told us that he now has a severe degenerative disease, and we are not sure how long he has to live.
Now that we know he’s married, it’s been brought to our attention that the state we live in has a law that if a spouse dies, the spouse can accept the condition of the will or get 30% of the spouse’s estate. In case of divorce, his wife will get 30% of his property, which is worth millions of dollars.
We always had a good relationship with our father and we all lived within a few miles of each other. We get together for many family events, always including my father’s wife. We’re all financially comfortable, but we’re very upset that this woman has to make so much money in just eight years together.
To make matters worse, my father is now worried that she might hurt him to get money. We don’t think she will, but my father refuses to leave the house, so her lawyer advises her not to. We offered to rent or buy him another house or condo, but he refused to leave. We hired round-the-clock carers, but the wife made it difficult for them to take care of my father.
It was a prenuptial agreement, but our lawyers said it was poorly written and wouldn’t hold up in court. Can you give us direction on where to turn to reduce this woman’s property class? We understand that she probably receives millions of dollars, but we honestly don’t believe she deserves 30% of everything.
Reluctant stepchild in Florida
There are many moving parts and questions surrounding your father’s marriage and estate. Florida is an equitable-distribution state, meaning that assets valued at $10 million or $100 million are distributed fairly or equitably. Anything acquired before the marriage is typically considered separate property. From your letter, it sounds like he either didn’t work during the five years of his marriage, or at least those weren’t his high-earning years.
A prenuptial agreement in Florida must be signed by both parties without undue influence or fraud, and must not be unfair. On the latter point, I spoke to Patrick Bagdassarian, a family law attorney based in California who also negotiates and creates prenuptial agreements. “A spousal support provision that is too onerous and too aggressive, if not contemplated in execution, will be unenforceable,” it says.
A prenuptial agreement would help your father maintain separate property and define the division of community property in the event of a divorce. But the Baghdadi people said: “If you get married and you are rich before marriage, whether you have a pre-marital agreement or not, these properties are already separate property.” In your father’s case, this may be easier to prove, especially given the short time he was married.
Any effort spent during marriage is considered a community effort, the Bagdaseri added. “If you continue to work in the business, it can now grow into a community asset,” he says. “A prenuptial agreement can specify what will happen on the business side.” But from your letter, it seems that the lion’s share of your father’s business is considered separate property if he decides to divorce his wife.
Undue influence, unfair influence
Undue influence, coercion and pressure on an incapacitated individual may constitute elder abuse. The National Center on Elder Abuse, a government agency affiliated with the US Attorney’s Office, and the nonprofit National Association of Adult Protective Services have resources and can help with steps you can take to report abuse. You can also talk to your father’s primary care physician for an evaluation of his health.
Elder abuse affects an estimated 5 million Americans each year, according to the National Council on Aging, and several agencies say that number is rising and underreporting. If your father has a degenerative disease and he is also cognitively impaired, it may be because he lacks the capacity to make decisions about his property or because of some undue influence or coercion.
A typical case where a person is ostracized by a partner or adult child, friend, neighbor or caregiver is estimated at $60 million by this Malibu doctor. “Undue influence is a psychological process used to perpetrate two types of elder abuse against the elderly: financial exploitation or sexual abuse,” says the National Center on Law and Elder Rights. “Undue influence is a legal concept.”
Is there a bad actor in this story? “Wicked stepmother” can be an easy target. I want to leave room for the possibility that your father’s illness may be causing cognitive decline and fear or paranoia about his own safety. Try not to create an atmosphere of trust by secretly marrying the foster parent. Don’t let your frustration be that this woman will share with your father’s estate.
His wife may be doing her best to take care of him. There are some important takeaways for you and your father, says Patrick Hicks, managing director of estate planning firm Trusts & Wills in San Diego, California. “How does he want the family business to run after he passes? How does he want the inheritance to be divided? There seems to be too much blame and focus on his wife, and not enough attention to the exact details of their father. Make a plan.”
“It’s an interesting but very common concept that marriage places some duty of care on one’s partner,” says Hicks. “Your ability to disinherit a spouse is often limited, and in many states the spouse has the option of taking a share or taking it in his will. And it varies by divorce, but some equitable division is common. Most important. Your father’s right to make his own estate plan and dispose of his assets as he sees fit.” He understood that he had.
Although it may be difficult to agree with this, according to Hicks, you should respect his autonomy and his decisions. “You may want to consult with an attorney to review the prenuptial agreement and help you understand the consequences of your father’s decisions,” he said.
In other words, just because you don’t want your father’s wife to inherit a portion of his estate doesn’t mean she’s a gold digger or a bad person or a threat to your father’s well-being. You can be upset that his estate is divided between his children and his wife, and you can still be a good person. These two things are not mutually exclusive. Either way, do your due diligence with doctors and an estate- or family-law attorney and put your dad’s health first.
You can email Moneyist with any financial and ethical questions at firstname.lastname@example.org and follow Quentin Fottrell on Twitter.
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More from Quentin Fottrell:
‘She’s a guardian’: My father set up a $500,000 trust for my needy sister and asked me to be the trustee. What are the risks of being a trustee?
‘We live in purgatory’: My wife has a trust fund, but my mother-in-law controls it. We get $400,000 and spend more than we can afford. What is our next step?
I’m afraid to tell my spouse: I’ve maxed out my credit cards and am $100,000 in debt because of my gambling addiction. Can you help?
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