Predatory Marriage - A Real Risk
It is easy to see why marriage might be an attractive option for older single adults who are widowed, divorced, and whose children are often scattered and busy with their own families and careers. At this point in life, many seniors have achieved an enviable degree of financial security. Thanks to savings, retirement, governmental entitlements , and the kids leaving home, adults between 65 and 74 enjoy the lowest rates of poverty in the US. Indeed, research confirms that a successful and happy marriage can substantially improve the quality of life for both partners. However, situations may arise where it may be hard to distinguish between a Love Match and what would be termed a Predatory Marriage.
In the courts, Predatory Marriage is defined as an opportunistic marriage where an individual preys on the emotions and vulnerability of an elderly or incapacitated person for the purpose of financial gain. This can occur in a myriad of forms. It might involve a person in a caretaker role—often much younger—who disingenuously initiates romantic involvement and influence to gain control of assets. Or sometimes a long-term, non-marital relationship is secretly ratified in the event that one of the partners is mentally incapacitated and the other takes advantage. In such cases, family members may remain unaware of the marriage until there is a death. Unfortunately, legal estate planning literature is rife with stories of elders or invalids spirited away for clandestine nuptials and dramatic alterations to long-term estate plans.
In such cases, original heirs can find themselves in an estate pickle. Unfortunately, the mental capacity requirements for entering a marriage contract are less rigorous than those required for making a valid Will and Testament. Further, in most jurisdictions, the legal action of marriage challenges existing wills and awards a pre-determined percentage of assets to a living spouse at time of death. In North Carolina, an “Elective Share” percentage ensures all spouses, regardless of a competing Will, access to the estate based on years of marriage:
– Less than five years: 15%
– 5 years but not less than 10 years: 25%
– 10 years but less than 15 years: 33%
– 15 years or more: 50%
Some states have taken steps to provide families some recourse in cases of Predatory Marriage. Florida, Texas, and California have adopted statutes protecting the elderly and incapacitated from abuse, setting up clear guidelines for what constitutes undue influence or fraud and providing legal means for challenging distribution of an estate. Here in North Carolina, we do not yet have such protections in place, but being aware of the potential risk is a good start.
Remember that the team at Hillsborough Wills & Trusts has the expertise to help you Build Your Circle of Security. Contact us at: