Ask a Florida Probate Attorney: When Caregivers Marry Dependent Elders

With baby boomers increasingly aging into their golden years, issues of elder financial exploitation are being paid more attention. Many schemes involve caregivers who take advantage of elder dependents. One means of this that has recently come to light are marriage scams. This involves caregivers or others marrying older dependents for the sole purpose of obtaining power over their finances.

These cases can be tough to prove, but some are occasionally successful. Perhaps the most infamous of these cases was that of Marshall v. Marshall, a U.S. Supreme Court case that involved the estate of an elderly billionaire, of which his son was executor, and his much younger wife, former Playboy Playmate Anna Nicole Smith.

It was difficult not to see the fact pattern in that case and jump to the conclusion that Smith had married the 89-year-old oil tycoon for his riches. But state law gives spouses broad legal powers over one’s estate and assets after they die. Proving that they shouldn’t receive it can be difficult, though not impossible.more

Marshall v. Marshall

The Marshall case was a rare example of a probate litigation case that was weighed in federal courts. Most are considered in state courts. The federal court may have jurisdiction in some disputes where federal matters are at issue or, as in this case, a substantial amount of money is involved.

Smith had married the elder Marshall just one year before his death, and sought to obtain half of his estate.

However, the specific question before the U.S. Supreme Court in 2006 was whether a federal court in California had jurisdiction of a probate matter out of Texas. In other words, the matter before the Supreme Court wasn’t whether Anna Nicole Smith was entitled to a share of her late husband’s estate, but rather which court was best to decide it. As far as that, the SCOTUS sided unanimously with Smith, allowing her to continue to pursuit of her case.

Just one month later, the billionaire’s son, executor of his estate, died. Smith herself died six months later. However, both parties’ estates continued warring. In 2011, the parties were back before the U.S. Supreme Court, with the son’s estate challenging a bankruptcy court’s award of hundreds of millions of dollars in damages. The U.S. Supreme Court in that matter ruled against Smith, finding the bankruptcy court lacked the jurisdiction to enter a final judgment on the matter because it wasn’t a core bankruptcy proceeding related to the underlying Title 11 filing. Smith’s counterclaim, on which the award was based, was not a core proceeding. This was an affirmation of the lower appellate court’s reversal of her damages award.

Proving a Marriage is Really an Elder Abuse Scam

Although a belief that Smith’s marriage to Marshall was merely a ploy for his money was at the center of the case, that fact was never the biggest issue litigated.

In truth, marriage scams often occur without many legal repercussions. That’s because they are difficult to prove, which is likely why Fort Lauderdale probate litigation lawyers are seeing it happen more often.

In a fair number of cases, caregivers are forcing elders with limited mental capacity into a late-in-life marriages for purposes of taking advantage of them financially. One can challenge asset distribution in such a case if one is able to prove fraud, coercion or undue influence.Both men and women can be victims of this type of elder financial abuse, sometimes referred to as “sweetheart scams.” They are most often carried out when the elder has suffered some deep personal loss (i.e., death of a spouse) and is left feeling isolated and lonely.

Although other loved ones may not have a problem with their parents spending money on a younger romantic interest later in life if that is what makes them happy. However, the concern is if that person ends up scamming the elder and leaving them destitute in their last days.

A probate litigation attorney can help prevent this by helping to protect certain assets from being taken by putting them into a trust. It is important to take action before the elder person becomes too vulnerable.

If you think your loved one married while lacking the mental capacity to consent to such a contract, talk with an estate attorney. There is a low capacity bar to enter into marriage, so such a case can be difficult, but that doesn’t mean it’s impossible. Marriages can’t be voided post-death, legally speaking, unless you can show coercion, fraud or undue influence.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Stern v. Marshall, June 23, 2011, U.S. Supreme Court