Question: My father remarried shortly after our mother died six years ago. At 80, Dad was 22 years older than his new wife, and while that caused me concern at the time, he would not listen to me. They moved into the home that he and Mother had purchased in the 1960s. 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. Not three weeks later, two of her children moved in with them (they are in their mid-30’s), further disrupting an ill-fated relationship.

My father told me many times that he would divorce my stepmother, but he didn’t think he could live through the proceedings. Then early last year, Dad suffered a stroke that left him partially paralyzed and in need of assistance. His wife put on a good show at the hospital, but when he returned home, she refused to care for him. She started to abuse him, sometimes leaving him all day with a dirty, wet diaper. Finally, he begged me to take him out of that house. I brought him to my home, cut back my hours at work, and took care of him for the past year and a half.

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 Number Two 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. She and her children have also made claims for services to him that are totally bogus. This is overwhelming to me and over the heads of the lawyers in the small town where we live. Can you give us any guidance?

Answer: In a word, you have a rather complicated mess with Number Two seeking to double dip using both the family and probate courts. Here are the problems and potential solutions:

First of all, generally speaking, only property division claims can be pursued in a matrimonial action after the death of a spouse. It would appear 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 one-half – that the spouse would have been received had there been no will, but there is an important exception: If you can prove that your father provided for Number Two 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, your 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.