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Jewish World Review April 4, 2005 / 24 Adar II, 5765 A prenup could have avoided this nightmare By Jan L. Warner & Jan Collins
http://www.JewishWorldReview.com |
Q: My father remarried shortly after our mother's death six years
ago. At 80, Dad was 22 years older than his new wife, and while that
caused me concern at the time, he would not listen to me. They moved
into the home that he and Mother had purchased in the 1960s. After a
year of arguments about his new wife not having any security, my
father put her name on the deed to the house, even though she had
never contributed one penny. Not three weeks later, two of her
children moved in with them (they are in their mid-30s), further
disrupting an ill-fated relationship.
My father told me many times that he would divorce my stepmother,
but he didn't think he could live through the proceedings. Then,
early last year, Dad suffered a stroke that left him partially
paralyzed and in need of assistance. His wife put on a good show at
the hospital, but when he returned home, she refused to care for
him. She started to abuse him, sometimes leaving him all day with a
dirty, wet diaper. Finally, he begged me to take him out of that
house. I brought him to my home, cut back my hours at work, and took
care of him for the past year and a half.
Once he was out of the house, the wife demanded money that Dad did
not have, and she sued him for support in family court. The judge
ordered him to temporarily pay the ongoing monthly expenses of the
house, even though her two children, who both work, live there.
Using the power of attorney that he gave me years ago, I went to the
bank and borrowed money to pay what my father owed her because his
only income was Social Security, and she had caused him to spend
most of his savings during the marriage. Early this year, Dad had a
heart attack and died. The will he signed before he married No. 2
left everything to me. She has sued his estate in family court to
try to get continuing payments, and has filed a claim against his
estate for her share of his half of the house and his other assets.
She and her children have also made claims for services to him that
are totally bogus. This is overwhelming to me and over the heads of
the lawyers in the small town where we live. Can you give us any
guidance?
A: In a word, you have a rather complicated mess with No. 2 seeking
to double-dip using both the family and probate courts. Here are the
problems and potential solutions:
Generally speaking, only property division claims can be pursued in
a matrimonial action after the death of a spouse. It appears that
the ongoing payments required by the family court judge were in the
nature of temporary support, and should have terminated at his
death. We know of no family court that has the authority to require
temporary payments to continue after the death of a spouse. That
action, therefore, should be dismissed.
Second, according to the law of most states, if a married person
does not provide for a surviving spouse by a will signed after the
marriage, the surviving spouse is called an "omitted spouse."
Generally, an omitted spouse gets the same share of the estate —
generally, half — that the spouse would have received had there
been no will. There is an important exception: If you can prove that
your father provided for No. 2 when he transferred the half-interest
in the house outside the will, and intended that to be in lieu of a
testamentary provision, a judge may find that she is not entitled to
more. The claims for services should be dismissed based on what you
say happened.
But another issue here is whether the assets involved are worth the
financial and time costs of the litigation. Only you can make that
decision; however, you and your father's dilemma could have been
prevented by appropriate planning, something most folks just don't
like to do. But stranger things have happened, and, for that reason,
we again point up the need for elderly people who remarry to sign a
premarital agreement, which, in your father's case, could have saved
a lot of problems.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. © 2005, Jan Warner |
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