A New Twist to Elder Abuse: Secret Deathbed Marriages to Caregivers

Sept. 30, 2010 - PRLog -- When arranging care for their frail and infirm parents, adult children seek loving and attentive caregivers. But the situation can turn to grief if the caregiver secretly arranges to marry the elderly parent in hopes of inheriting the spousal share of the estate. While no one knows how many deathbed weddings occur between unknowing elders and scheming caregiver “spouses,” the phenomenon is evident in the growing number of lawsuits being brought before the courts, according to Susan B. Slater-Jansen, Esq., a trusts and estates attorney with Kurzman Eisenberg Corbin & Lever in White Plains. “Throughout history, younger men and women have married older spouses for money, but in a new twist, we’re finding caregivers are taking advantage of their mentally incapacitated charges, who have no idea of what’s going on, and convincing them to get married,” she explains.

These sham deathbed marriages are almost impossible to prevent, notes Ms. Slater-Jansen. “If a caregiver is determined to take advantage of an older person’s infirmity to get rich, there is little you can do, short of installing ‘nanny-cams’ throughout the home,” she explains. “The best thing to do is to go to court immediately if you discover a secret marriage or any other scam.” She also recommends that adult children seek trusts and estates legal advice as their parents age and begin to lose their mental faculties. “With proper planning, you can reduce the risk that a caregiver can easily profit from her defenseless charge,” she says.

In New York State, adult children have legal recourse to void a secret marriage and protect the parent’s estate before the parent’s death. But current law makes it difficult to protect the estate after the parent dies. The New York State Estates Powers and Trusts Law allows the surviving “spouse” to claim a share of the estate -- even if the marriage is voided after the parent’s death, according to Ms. Slater-Jansen. “With examples of elder abuse increasing on a daily basis, it would seem that the legislature’s previous aim of protecting a surviving spouse from being cut out of a decedent’s estate by unhappy relatives needs to be adjusted to take into account the new reality.”

The good news for rightful heirs who suffer from these scams is that in two recent cases, New York’s Appellate Division has found a way to set things right. In both cases, the surviving “spouse” was found to have taken advantage of her mentally incompetent charge. Since New York law prohibits individuals from profiting by their own fraudulent acts, the caregivers’ claims to the deceased parents’ estates were denied.

These two cases show the depth of deception undertaken by the caregivers. In the case of Campbell v Thomas, while the daughter and primary caregiver for Howard Nolan Thomas, age 72, took a week’s vacation, care was provided by Nidia Colon, age 62, a friend of the father. Thomas was suffering from Alzheimer’s disease and terminal cancer. In one week’s time, Colon married the father, began to transfer assets, sold land owned by Thomas, and named herself sole beneficiary of his retirement account. Later, when confronted by his children, Thomas had no recollection of any marriage, saying, “What are you talking about?...I’m not married…Are you crazy?”

In the Matter of Berk, a live-in housekeeper secretly married 99-year-old Irving Berk, who suffered from severe dementia. At the time, Berk’s physician had deemed that the man was incapable of entering into binding contracts or managing his social affairs. Berk died a year later. Berk’s “wife” only informed Berk’s heirs of the marriage the day before the funeral. Even though the housekeeper was not named in Berk’s will, as a surviving “spouse” she was entitled to a third of the estate.

Although these Appellate decisions will make it easier in the future to fight such elder abuse in court, Ms. Slater-Jansen warns, “The problem remains that without legislative action, there is no statutory framework to stop this type of abuse. Until the law is amended, it will continue to be an emotional and financial drain on families to pursue this through the courts.”

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Kurzman Eisenberg Corbin & Lever, LLP was founded in 1985 with the idea of providing superior, sophisticated and cost-effective legal services to a broad range of individuals and corporate clients. The firm’s size and multi-discipline expertise allows its lawyers to handle complex legal matters and provide a full range of legal services in various practice areas, including corporate, litigation, real estate, tax and trust and estates. Kurzman’s lawyers have impressive backgrounds and an extraordinary commitment to client service. For more information, visit www.kelaw.com.