Preventing Deathbed Marriages

Though no one knows the number of marriages that take place between an elderly patient and their money-seeking caregiver, attorneys claim that litigation over these marriages has increased. Some attorneys suspect the increase is due to the prevalence of dementia and the increase in life span.

Children of elderly parents have virtually no standing to challenge their parent’s property division as a result of a “deathbed marriage” after the parent’s death. Most states’ probate laws allow widow’s rights to trump any estate plan, even when the marriage was with someone unable to remember saying “I do.” Typically, the only option to fix the property division is to annul the marriage, and the only person with legal standing to ask for an annulment is the surviving spouse.

Two states have attempted to put a stop to these sham marriages. A New York appeals court recently ruled in favor of two families of deceased men with dementia who married their caregivers without their families’ knowledge. The court ruled that the two men’s surviving spouses did not receive a share of their deceased husbands’ assets. In Florida, the relevant statute “[does not] narrow any existing right to marry; it [merely] severs marriage from its usual property consequences in certain circumstances.”

Until additional states take steps to prevent these deathbed marriages, families of elderly individuals should stay wary. It is important to stay in contact with an elderly loved ones, especially if distance plays a significant factor. If a family member or loved one believes that a relationship is developing between and caregiver and an elderly loved one, the family member should voice his or her concerns.

Additionally, if an elderly loved one has dementia or is at risk of having dementia, a family should look into creating a durable power of attorney. Families may also consider having an elderly loved one put his or her assets in a trust to prevent a greedy caregiver from gaining access to them. As a last resort, if an elderly loved one is suspicious of his or her family’s attempts to help, the family may consider having the loved one ruled as lacking capacity to marry as an attempt to prevent a deathbed marriage.

See Kelly Greene, Unholy Matrimony: How to Fight Back, The Wall Street Journal, Jun. 11, 2011.

Special thanks to Rob V. Robertson (attorney, Austin, Texas) and Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.