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Jewish World Review
Dec. 10, 2007
/ 1 Teves 5768
What is a ‘fair share’ of the will?
By
Jan L. Warner & Jan Collins
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http://www.JewishWorldReview.com |
Q: My father-in-law and mother-in-law, both in their mid-80s, died within six weeks of each other after long illnesses. They both died at home where they wanted to be.
At my husband's request, I stopped working at a local hospital where I had been employed as a nurse four years ago to basically care for them full time. I did everything from taking them to their doctors, which was no easy task, to coordinating sitters to handling their medications. In short, I wore myself out looking after these folks 12 to 16 hours a day. I lost income from my job, lost retirement and lost contributions to my Social Security. If I had not stepped in, my in-laws would have gone to nursing homes at much greater expense and at less quality of life than they had at home. His parents told everyone who came to visit them that had it not been for what I did for them, they don't know what they would have done, and that they wanted to make sure I was taken care of financially.
On the other hand, my husband has two siblings who live halfway across the country who did absolutely nothing to help these people during the last three years except breeze into town once or twice a year, go out to eat, and spend little time with their parents. Now that they have passed, however, it is a different story. They are here with lawyers wanting audits of everything. My in-laws had old wills leaving everything to the other and then to the children equally. In retrospect, my husband could have taken them to a lawyer to get new wills, including for me, but that never crossed our minds. Their care was the most important thing.
I was not going to ask for anything, but now that the sibs are torturing my husband and me and not being thankful for the sacrifices we made, I would like to know if I can make any type of claim for what I did.
A: With significant portions of care for the elderly being provided by family members, these issues arise more regularly than you may think. Those who are not directly involved in the caregiving process generally have no idea what it takes and, after the fact, think a pat on the head and "thank you" are sufficient remuneration, not considering the savings generated by intrafamily care.
That said, there are two ways to make a claim: 1) a contract with your in-laws, which obviously you don't have; or 2) a claim for services that allows you to recover the value of your services, based upon your work, to prevent unjust enrichment of others.
Generally speaking, to recover any money, you must prove that 1) you provided a benefit for your in-laws, which they realized, and that 2) it would be inequitable to allow the beneficiaries of their estates — including your husband — to divide the estate without paying the value of your claim.
If you were a family member without a contract, it would be presumed you provided the services gratuitously; however, where, as here, as a daughter-in-law, you did not owe a legal or moral obligation to provide any such services, it is presumed that you did not render your services gratuitously.
An actual contract to pay for your services need not be shown to entitle you to compensation.
Taking the NextStep: There are specific claim procedures in probate courts that must be adhered to, so contact a lawyer knowledgeable in this area. Because of space limitations, we will complete this answer next week.
Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.
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.
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