Next Steps: Prenuptial agreements can prevent disagreements

Q: My father remarried shortly after our mother’s death six years ago. At 80, Dad was 22 years older than his new wife. After a year of arguments about his new wife not having any security, my father put her name on the deed to the house, even though she had never contributed one penny.

Early last year, Dad suffered a stroke that left him partially paralyzed and in need of assistance. She started to abuse him, sometimes leaving him all day with a dirty, wet diaper.

Once he was out of the house, the wife demanded money that Dad did not have, and she sued him for support in family court. The judge ordered him to temporarily pay the ongoing monthly expenses of the house, even though her two children, who both work, live there.

Using the power of attorney that he gave me years ago, I went to the bank and borrowed money to pay what my father owed her because his only income was Social Security, and she had caused him to spend most of his savings during the marriage. Early this year, Dad had a heart attack and died. The will he signed before he married No. 2 left everything to me. She has sued his estate in family court to try to get continuing payments, and has filed a claim against his estate for her share of his half of the house and his other assets. Can you give us any guidance?

A: In a word, you have a rather complicated mess with No. 2 seeking to double-dip using both the family and probate courts. Here are the problems and potential solutions:

Generally speaking, only property division claims can be pursued in a matrimonial action after the death of a spouse. It appears that the ongoing payments required by the family court judge were in the nature of temporary support, and should have terminated at his death. We know of no family court that has the authority to require temporary payments to continue after the death of a spouse. That action, therefore, should be dismissed.

Second, according to the law of most states, if a married person does not provide for a surviving spouse by a will signed after the marriage, the surviving spouse is called an “omitted spouse.” Generally, an omitted spouse gets the same share of the estate — generally, half — that the spouse would have received had there been no will. There is an important exception: If you can prove that your father provided for No. 2 when he transferred the half-interest in the house outside the will, and intended that to be in lieu of a testamentary provision, a judge may find that she is not entitled to more. The claims for services should be dismissed based on what you say happened.

But another issue here is whether the assets involved are worth the financial and time costs of the litigation. Only you can make that decision; however, you and your father’s dilemma could have been prevented by appropriate planning, something most folks just don’t like to do. But stranger things have happened, and, for that reason, we again point up the need for elderly people who remarry to sign a premarital agreement, which, in your father’s case, could have saved a lot of problems.