My family is dealing with a significant shock. My brother, my sister and I have just found out that our elderly father secretly married his caregiver five years ago and never told us. We have a thriving family-owned business, and our father\u2019s wealth is in the hundreds of millions of dollars.<\/p>\n
This caregiver is 40 years younger than my father. Her visa was already invalid, as she never went to school and she stayed in the United States well beyond when she was scheduled to leave. She has lived with my father for eight years, five of them while married. <\/p>\n
My father has now told us he has a serious degenerative disease, and we aren\u2019t sure how long he has to live.\u00a0<\/p>\n
Now that we know he\u2019s married, it\u2019s come to our attention that the state we live in has a statute that says if a spouse dies, the partner can choose either to accept the conditions of a will or get 30% of the spouse\u2019s estate. If they divorce, his wife would get about 30% of his estate, which is worth $80 million.<\/p>\n
<\/p>\n
\n \u201c<\/span>\u2018We are all comfortable financially, but we are very upset that this woman should get so much money for only eight years together.\u2019\u201d<\/span>\n <\/p>\n<\/p><\/div>\n<\/p><\/div>\n We\u2019ve always had a good relationship with our father, and we all live within a few miles of one another. We get together for many family events and always include my father\u2019s wife. We are all comfortable financially, but we are very upset that this woman should get so much money for only eight years together.\u00a0<\/p>\n To complicate things, my father now is very worried that she might harm him to get money. We don\u2019t think she would, but my father refuses to leave his house, and her lawyer has advised her not to leave. We\u2019ve offered to rent or buy him another house or condo, but he refuses to leave. We\u2019ve hired round-the-clock caregivers, but his wife makes it difficult for them to tend to my father.\u00a0<\/p>\n There was a prenuptial agreement, but our lawyers said it was poorly written and would never hold up in court. Can you give us direction on where to turn to reduce this woman\u2019s part of the estate? We understand she will probably receive millions of dollars, but we honestly don\u2019t believe she deserves 30% of everything.\u00a0<\/p>\n Reluctant Stepdaughter in Florida<\/p>\n There are many moving parts and questions surrounding your father\u2019s marriage and estate. Florida is an equitable-distribution state, meaning that his assets will be distributed fairly or equitably whether they are worth $10 or $100 million. Anything earned before his marriage will typically be regarded as separate property. From your letter, it sounds like he has either not worked during his five-year marriage, or that at least those have not been his peak earning years.\u00a0<\/p>\n In Florida, a prenuptial agreement must be signed by both parties without undue influence or fraud, and it must not be unfair. On that last point, I spoke to family-law attorney Patrick Baghdaserians, who is based in California but who litigates and creates premarital agreements. \u201cIf you have a spousal-support provision that is too onerous and too aggressive, unconscionable at the time of enforcement, it\u2019s going to be unenforceable,\u201d he says.<\/p>\n A premarital agreement would have helped your father protect separate property and outline the division of community property during the marriage in the event of a divorce. But Baghdaserians notes: \u201cIf you get married, and you\u2019re already wealthy prior to marriage, whether you have a premarital agreement or not, those assets are already separate property.\u201d In your father\u2019s case, that\u2019s likely relatively easy to prove, especially given the short amount of time he has been married.\u00a0<\/p>\n Any efforts he expends during the marriage are considered community efforts, Baghdaserians adds. \u201cIf you continue to work in the business, it can now develop into quasi-community property,\u201d he says. \u201cA premarital agreement can outline what happens with that portion of the business.\u201d But from your letter, he says, it sounds like the lion\u2019s share of your father\u2019s business would be deemed separate property should he decide to divorce his wife.<\/p>\n Undue influence, duress and pressure on an individual who has lack of capacity could constitute elder abuse. The National Center on Elder Abuse, a government agency affiliated with the U.S. Administration on Aging, and the nonprofit National Adult Protective Services Association have resources and can provide help with the steps you can take to report alleged abuse. You can also contact your father\u2019s primary physician for a review of his health.\u00a0<\/p>\n Elder abuse affects an estimated 5 million Americans every year, according to the National Council on Aging, and multiple agencies say that number is both increasing and underreported. If your father has a degenerative disease and he also has cognitive impairment, it may be that he lacks the capacity to make decisions about his estate, or that he could be under some kind of undue influence or duress.<\/p>\n A typical scenario is when a person is isolated by a partner or an adult child, friend, neighbor or caregiver, as allegedly happened with this Malibu doctor worth an estimated $60 million. \u201cUndue influence is a psychological process that may be used against an older person as a means of committing two forms of elder abuse: financial exploitation or sexual abuse,\u201d says the National Center on Law & Elder Rights. \u201cUndue influence is also a legal concept.\u201d<\/p>\n Is there a bad actor in this story? The \u201cevil stepmother\u201d could be an easy target. I want to leave room for the possibility that your father\u2019s illness could have led to cognitive decline and fear or paranoia about his own safety. Try not to allow the fact that he married his caregiver in secret create an atmosphere of distrust. Don\u2019t allow your frustration over the fact that this woman will share in your father\u2019s estate to demonize her without due cause.\u00a0<\/p>\n It may be that his wife is doing her best to take care of him. Patrick Hicks, lead counsel at Trust & Will, an estate planning platform firm in San Diego, Calif., says there are some valuable takeaways for you and your father. \u201cHow does he want the family business to be run once he passes? How does he want his inheritances distributed? It seems there is a lot of blame and focus being put on the wife, and not enough attention to the actual details of their father\u2019s plan,\u201d he says<\/p>\n \u201cIt is interesting but also a very common concept that marriage bestows certain obligations to care for a spouse,\u201d Hicks says. \u201cYour ability to disinherit a spouse is often limited and, in many states, the spouse has the option to take a share or take under the will. And with divorce it varies, but some equitable division is common. Foremost, it is crucial to understand that your father has the right to make his own estate plan and dispose of his assets as he sees fit.\u201d<\/p>\n Although it may be difficult to come to terms with that, Hicks says, you need to respect his autonomy and his decisions. \u201cYou may also want to consult with an attorney to review the prenuptial agreement and ensure your father understands the consequences of the decisions he is making,\u201d he notes.<\/p>\n In other words, just because you don\u2019t want your father\u2019s wife to inherit a portion of his estate does not mean that she is a gold digger or a bad person, or that she is a threat to your father\u2019s well-being. You can be upset that his estate will be divided among his children and his wife, and she can still be a good person. Those two things are not mutually exclusive. By all means, do your due diligence with doctors and an estate- or family-law attorney, and put your father\u2019s health first.<\/p>\n You\u00a0can email The Moneyist with any financial and ethical questions at qfottrell@marketwatch.com, and follow Quentin Fottrell on\u00a0Twitter.<\/a><\/strong><\/em><\/strong><\/em><\/strong><\/em><\/p>\n Check out\u00a0the Moneyist private Facebook<\/strong><\/em>\u00a0group, where we look for answers to life\u2019s thorniest money issues. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.<\/strong><\/em><\/p>\n The Moneyist regrets he cannot reply to questions individually.<\/em><\/strong><\/p>\n More from Quentin Fottrell<\/strong>:<\/p>\n \u2018She is a grifter\u2019: My father set up a $500,000 trust for my troubled sister, and asked me to be trustee. What are the risks involved in being a trustee?<\/p>\n \u2018We live in purgatory\u2019: My wife has a trust fund, but my mother-in-law controls it. We earn $400,000 and spend beyond our means. What\u2019s our next move?<\/p>\n I\u2019m afraid to tell my spouse\u2019: I maxed out my credit cards and racked up $100,000 in debt due to my gambling addiction. Can you help?<\/p>\n<\/p><\/div>\nDear Stepdaughter,<\/strong><\/h2>\n
Undue influence<\/h2>\n
Remaining questions<\/h2>\n