A predatory marriage, which is when one party is lacking capacity and is exploited by another party into a marriage, is a form of elder financial abuse, according to the New York Law Journal in “Predatory Marriages and the Elderly: A Legislative Solution,”
A recent case best illustrates a predatory marriage: a 47-year-old caregiver is riding in a car to the funeral home with the sons of the man she has been taking care of until he died at age 100. She announces that she and the man were married in secret a year ago.
This is not an easy case to deal with because of a defect in the law. In New York, there is a “right of election” statute that permits a surviving spouse to claim a share in the estate of a deceased spouse, even if he or she was left nothing, as long as they were married on the date of the decedent’s death. Originally meant to shield a surviving spouse from being left nothing, this law is now being used by unscrupulous people to take financial advantage of the elderly.
Dishonest individuals marry mentally incapacitated seniors and then claim their right of election share.
These sham marriages can still result in the person receiving a share of the estate because there’s a flaw in this law. The elective share can only be barred if there was a judgment declaring that the marriage was annulled in effect at the time of death of the spouse. If the predatory marriage is detected before death and a court order voids the marriage, only then can the elective share be denied. If the judgment of nullification is made after death, the surviving spouse can make a claim.
Like most scams, the person pursuing the predatory marriage will work hard to ensure that no one learns about the marriage until after the person dies.
In contrast, there is a Mental Hygiene Law in New York State that authorizes the court to revoke any previously executed contract, if the court finds that the contract was made while the person was incapacitated. Marriage is treated as a contract under Mental Hygiene Law and a judgment declaring a marriage void can be issued even after death.
In the case of the 47-year-old woman who hoodwinked the elderly man, the family fought back in court and her claim was denied. Based on the evidence, the court found that she knew the man was mentally incapacitated and entered into the marriage to obtain monetary benefits.
A bill has been introduced in the New York Assembly and Senate that would amend the law to allow the courts to declare a judgment of annulment before or after the death of the spouse, thereby voiding the marriage and disqualifying the surviving spouse from claiming the elective share.
An estate planning attorney can advise you on creating an estate plan that fits your particular circumstances.
Reference: New York Law Journal (May 16, 2019) “Predatory Marriages and the Elderly: A Legislative Solution”