The Elder Law Coach

Ep 61 Predatory Marriages Explained

• Todd Whatley

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We unpack how predatory marriages target vulnerable seniors and why marriage rights can override estate plans. We share practical steps for attorneys and families to spot red flags, fortify documents, and protect assets before litigation becomes the only option.

• definition and common scenarios of predatory marriage
• key red flags including isolation and capacity changes
• how elective share and joint accounts bypass wills
• attorney duties around capacity and undue influence
• proactive planning with trusts, POAs, and directives
• family involvement and oversight after late-life marriage
• why DIY documents fail under court scrutiny
• timing and documentation to validate capacity at signing

You can always call the office at 479-601-4119. Visit www.theelderlumcoach.com to learn about Todd’s coaching program.


Check out our new website www.TheElderLawCoach.com.

SPEAKER_00:

You're tuning in to the Elder Lum Coach Podcast, the definitive resource for attorneys delving into the world of elder lum. With your host, Todley, a certified Elder Lum attorney, past president of the National Elder Law Foundation, and renowned coach with a quarter century of specialized experience. Whether you're an established attorney looking to refine your expertise, or an emerging lawyer seeking a successful foray into elder law, this is your master class. Now, let's get started with Illuminary in the field. Here's Todd Watley.

SPEAKER_01:

And the topic today is predatory marriages. All right. These are situations where a vulnerable senior is manipulated or ex exploited into marriage by someone typically with financial motivations. Okay. Sometimes it can just be you, you know, they're lonely, and you know, two people get together and they, you know, ignore other things, but almost always it is a financial motivation, and the fallout from this can be devastating. It undoes estate plans, it will disinherit children, and probably most importantly, it's going to trigger some expensive legal battles. So I want to talk about that today as something that needs to be addressed. Okay. It is a growing problem in America. I see it not frequently, but I see it more than I should. And particularly as people are living longer and dementia is becoming a bigger issue all the time. This is something that we need to be aware of. And you may think that, well, I've done a will or a trust, and therefore that's going to take over. Well, marriage laws are very important, and particularly in the in Arkansas. And across the country, a marriage relationship has very definite estate planning issues with it. Even if you don't put anything in writing and it, it will be handled with priority above the estate plan. Okay. So we must understand, and I want you out there to understand that as the public, I want you to understand this is something going on and you need to be looking for it with an older person. And if you're an attorney listening to this, particularly as an elder law attorney, please know what to do and how this works. Okay, so let's define this first. A predatory marriage is defined as when someone intentionally targets a vulnerable senior, often with cognitive decline, loneliness, or fiscal limitations, for the purpose of financial gain through marriage. Okay. Very common scenarios that we see is a caregiver or a much younger romantic partner marries a senior who lacks capacity. There's a neighbor, a tenant, a friend. Someone isolates and manipulates an elderly person. And I I see this all the time. People say, Well, Dad's got a caregiver, and it's a female, and she will never let us in the house. We we always call, he's in the shower, he's taking a nap, he had a rough night, he really does need to sleep right now. There's just always an excuse for never being able to talk to, and particularly if you live a long ways away, the only way that you can talk really is by phone. And I've even had some who physically show up at the house and just are not allowed in and they don't know what to do. Okay. And sometimes this marriage occurs quietly. No one even knows that it's happened until the death of this person. And that's where things get really ugly and people get really upset. And please understand that after death, a new spouse inherits automatically under in testacy laws are elective shared statutes. And it's important that we understand that and realize that the marriage relationship is important. And in most states, marriages can override the estate plan. Even if a will exists, the new spouse may be entitled to a substantial portion of the estate. All right. So what are some red flags? What are some risk factors? Red flags that we may see here. And number one, almost always it is a significant age gap. Older men, younger women. Almost I've I don't think I've ever seen the older woman with a younger man. I know it would occurs. I just personally personally have never seen it. It's almost always the older man finds or the younger woman finds the older man. Another thing that will trigger this, and one thing that you need to be aware of, is if there is a recent change in mental capacity, early dementia, Alzheimer's, something has occurred where this person does have a decrease in mental capacity. And typically there is a caregiver that has been hired to come in and work with this family, and that's where it starts. Okay. Um, be aware of people that are socially isolated, someone who doesn't have many people come by and visit, people who don't get out much. Those people are very vulnerable. And since no one checks on them, this can be going on and no one really knows about it. If your parent does get remarried, or if your client does get remarried to much later in life, this is something that needs to be watched. The family needs to be very involved. And I, as the attorney, note this and keep this in mind and make sure that I'm going to do as many legal documents and legal things that I can to make sure that nothing untoward happens. And then the situation where a client comes in and they have suddenly changed a longtime estate plan. I hate those meetings because I want to represent the client and do what they want to do. But then are they being unduly influenced? Are they doing this and not fully understanding what they're doing? And I think I go to extreme lengths to make sure that this is done correctly, that everything we can do is done so that we don't upset a very long-standing estate plan. But I mean, there are times when something new does need to be done. And that's where you've just got to work with an attorney who knows exactly what to do and be looking for this. And as an elder law attorney, you need to be the one who knows this and is looking for it. There should be a power of attorney. If there's not a power of attorney, you should always have a power of attorney in place. If you listen to me much, you know that I am adamant that everybody over the age of 18 needs a power of attorney in place. And many times, if there is undue influence, something like this comes in. I mean, depends on how savvy the abuser is, but sometimes they will go get a new power of attorney. And hopefully the attorney that they go to is mindful of this. But I've seen numerous times when they weren't, and the new spouse is able to convince someone to get a power of attorney. Also, if there's no estate planning documents, this needs to be done. And I would highly encourage the whole family to be there. That if the older person comes in, I'm going to ask questions. And particularly with a late-in-life marriage, with a big gap in age, and you know, these red flags start popping up. I'm going to be very careful. And I I may want to ask the family to come in and join. Yeah, the client can object to that. And that's where you have to figure out do I really want to continue with this representation or not, because it just may not be worth it. Okay. Um what's the legal fallout and what is the estate disruption on this? Well, it it's huge. The new spouse claims spousal elective share bypassing the will. All right. So it is huge. It is a very important thing that that marriage relationship, that legal agreement between those two people going to the measures of getting married, uh carries uh significant weight with it. And typically what we see after this marriage, and uh we redo the estate plan, and the children are basically disinherited for the benefit of this uh newer spouse. And sometimes it's not even actively done, you know, like you're actively going to the attorney's office and naming the spouse and intentionally disinheriting the kids. It's simply having the new spouse put their name onto the bank account with the older person. Okay. That's that's huge. Okay. That is a big issue and it's very subtle, and it's just kind of what makes sense to people is let's just go to the bank and let me put my name on your account with you so that I can sign checks, so that it'll be convenient. You don't even have to go to an attorney for that to do power of attorney, to change power of attorney from one person to another. Just going to the bank is very subtle. And that can that does cause huge problems. Then once the person dies, we, you know, typically the family who just got disinherited, they're going to open up a probate and they're going to start fighting all this. But jointly owned property that goes to the other spouse. I mean, it is their money from the day that person dies. It is their money. And if it's gone, it is gone. And it becomes very difficult to recoup money from someone who takes, you know, basically their money, legally, their money, and they go and spend it. And so I would alert families and you people out there listening, please understand, know that this can happen and make sure that mom or dad with this new relationship is not adding people to their bank account. So trusts not updated to reflect new material status may fail to protect assets. Okay. And so you can download so many things off the internet nowadays. And I see people who do it, and it's almost, I mean, it's pretty much 100% not done correctly. Yes, you are saving some money, and one of my favorite phrases is save a buck and lose a fortune. And these people do get online and they will download this and you know, signed, and it's it's a mess. And I will tell you, just you know, uh what I tell people all the time is one of the reasons that you hire an attorney to do these documents is that attorney will back you up. And so we as attorneys, we back up our documents. Someone paid us to do this power of attorney, do this trust, and it it does what our clients want it to do. And when the lawsuits start flying and our document comes into question, an attorney sitting in that witness chair and testifying carries tremendous weight. A judge is going to have a lot of assumptions and understanding of this attorney who's done this and say they're an attorney. They they were aware of, I mean, the assumption is that the attorney was acting in the client's fiduciary duty. And that alone can help win your case. And so, you know, when advertising this, it's like, look, you don't want to do this by yourself. You want to hire an attorney to do this, number one, to make sure it's done right, but then also to argue this, to argue with the court. Yes, the person knew exactly what they were doing. They had capacity when they were sitting at the table and sign this document. And having an attorney after the person's gone and can't come back and say, Yeah, this is what I did and I meant to do it, having that attorney sit there and speak for the client is absolutely huge. Proactive planning is key to this process. I encourage clients to have comprehensive plans in place while fully competent. Once we can get letters from physicians and different things to say this person should not be making financial decisions, it becomes very, shall we say, sketchy to redo documents after this letter is done. They get done all the time. Okay. And if you've heard my podcast working with a client with diminished capacity, you can sometimes do documents even after the physician signs that letter because that physician saw that client at one time. And making a document legal depends on at the point of signing. And many times a client is a much different person in the morning than they are in the afternoon. And I have had letters from clients, physicians saying this person should not be making financial decisions, but I have I met with them, they know exactly what they're doing, they know who they want to do it. I will do documents, okay, because I can say at that point when that person signed, I was there, staff was there, we all witnessed, and that person had capacity when they when they finally sign these documents. So part of that comprehensive plan is trust, powers of attorney, health care directives, HIPAA releases, all kinds of things to make sure that your estate plan is done exactly the way that you want it. You want the client to be able to do exactly what they want and put it in writing so that it will withstand incapacity and death. And it's crucial that we discuss marriage and estate rights openly. I encourage the entire family to come. If the family is told not to come, that does raise some red flags. Not that it's improper and we can't work with that client, but it does raise questions. And I would much rather have the entire family there so we can all sit at the same table, look at it, and know what to do. As always, we as attorneys educate clients. We educate family members. You know, I take the counselor at law designation very seriously because we are counseling people more than just doing anything. Sometimes we don't do do any legal documents, but we help people understand what the law is. So you can come in and spend an hour with me, and I I just may teach you, teach you things that you don't know. And we as attorneys need to understand. We have a lot of things that we need to teach families and they need to listen to us. All right. Final thoughts. Predatory marriage is is quite epidemic. It is out there, it is happening, and particularly since people are living longer and b and having more issues with dementia. It is an issue. It is something that we need to be aware of, and and I want to make families aware that they need to keep their eyes open. When an older family member remarries and has some issues going on, you've got to be very involved in their family. You can't just say, oh, you know, they're, you know, he's now married, he now has someone, so good. He's entertained and he's he's not lonely anymore. No, no, no, no, no, no. You need to be very involved and make sure you you know what's going on. We as attorneys are the first line of defense. We can recognize this, we can do things, we can see what's going on, and we can fix many of those problems. And once again, early planning is crucial. Client education, professional vigilance, okay? Us working with families, us making sure families know this is an issue, and then us being able to fix that is just huge. So I encourage families to review their estate plans, bring them in, let's go through it, let's look at it. And so almost every time that I do speeches, people are like, Do I have to go back to the other attorney to look at this? No, you can bring their documents to me and I will look at those. I will help you do this. And just encourage clients to check in with loved ones. Don't stay away, see what's going on, become a little bit of a busybody and see what's going on. And I encourage everyone to seek out the advice from an elder law attorney. Position yourself as the expert in the field and say, I can help you with this. Okay. So this is a a a huge issue. This is something that that I don't see frequently, but when you see it, it's a big deal. And so I want you to understand, you know, keep keep this in mind, stay studied up on it, know that it's going on, and then, you know, when something occurs, you know who to call. All right. Thank you all very much for listening. I hope this helps. You can always um um call the office at 479-601-4119. And I would love to work with you if if this is an issue. Okay? Thank you, and I will see you next time.

SPEAKER_00:

Thank you for joining this episode of the Elder Llama Coach Podcast. For those eager to take their elder law practice to new heights and are interested in Todd's acclaimed coaching program, visit www.theelderlumcoach.com. With Todd Watley by your side, the journey to becoming an elder law authority has never been more achievable. Until next time, keep learning, keep growing, and stay passionate about elder law.