Caregiver Abuse: Marrying for an Elective Share
As the baby boomers continue to age, caregivers abuse the situation at an increasing rate. Two New York cases took abuse to a new level:
- In re Berk, 2010 N.Y. Slip Op. 02139 (Supreme Court, March 16, 2010). Irving Berk, an extremely successful businessman, had an abusive live-in caregivier, Judy Wang. In 2005, 91-year-old Berk was diagnosed with dementia and ruled incapable of managing his affairs. Two months later, Irving and Judy were married, but Judy didn’t tell Berk’s family. When Berk died in 2006, the Surrogate’s court found that Wang was entitled to an elective share.
- Campbell v. Thomas, 2010 N.Y. Slip Op. 02082 (Supreme Court, March 16, 2010). In 2000, Howard Nolan was diagnosed with severe dementia. In 2001, Nolan and his caregiver, Nidia Colon, were secretly married. Upon Nolan’s death later in 2001, Nidia claimed she was entitled to an elective share.
The appeals court found that these women did technically have rights to elective shares, but it turned to the equitable principle that a statute shouldn’t be strictly applied when doing so protects fraudulent conduct. The court also discussed a public policy argument for protecting vulnerable, incapacitated individuals.
“Although the courts in these cases didn’t allow the caregivers to benefit from their wrongdoing, these cases reveal a serious problem with caregiver abuse of clients that may require a legislative response.”
John T. Brooks & Samantha E. Weissbluth, Marrying for the Money: A New Twist?, Trusts & Estates, April 20, 2010.