Over the past several years, some estate litigation cases have included the marriage of a person who was close to death, whether an elder or a younger person with limited life expectancy. These cases are different than those such as Groucho Marx and Anna Nicole Smith, where one party was relatively young and one was relatively old, but the older person was not necessarily in an end of life situation. 

Sometimes these situations are basically marriages of convenience, and although “legally performed,” may be construed to be a sham. For instance, in recent history in New York, there were two cases that reached the courts in which the marriages were contested. In both cases, the marriages were declared to be invalid based on the incapacity of one of the parties.

Unfortunately, if you are a beneficiary or an heir in these situations, your primary recourse is to object to the will or file an action to set aside the marriage as being void based on incapacity. 

Sometimes a caregiver marries their “boss,” thus having superior rights to inherit than children, especially when a will and other testamentary changes are made, such as beneficiaries on life insurance policies and retirement plans. In several such cases, the children did not even know that their parent had married until after the funeral, and it is very difficult to obtain testimony about a person post-death. 

It is certainly easier to attend to an elder loved one’s affairs through a power of attorney and possibly a trust than have to litigate these situations, which costs time and significant expense and is also emotionally draining. In any case, it is important to know what your loved one owns for assets and attend to their affairs yourself to help assure that the plan proceeds without the interference of surprise, unwanted beneficiaries later in life or after death.

Hyman G. Darling, Esq.

Photo credit: Microsoft

This post originally appeared on Bacon Wilson, P.C.'s blog entitled, "Estate Planning Bits."