My father’s business is worth millions. He married his caregiver, who is 40 years his junior. He is afraid that she will harm him. How can we prevent her from inheriting?

By Quentin Fottrell

“There was a marriage contract, but our lawyers said it was poorly written and would never stand up in court.”

Dear Quentin,

My family is dealing with a major shock. My brother, sister and I just found out that our elderly father secretly married his caregiver five years ago and never told us. We have a thriving family business and our father’s net worth is in the hundreds of millions of dollars.

This caregiver is 40 years younger than my father. Her visa was already invalid because she never went to school and stayed in the United States well beyond her planned departure. She has lived with my father for eight years, five of them married.

My father has now informed us that he has a serious degenerative disease and we do not know how long he has to live.

Now that we know he’s married, it struck us that the state we live in has a law that says that on the death of a spouse, the partner can choose to accept the terms of a will or be 30 % of the spouse’s estate. If they divorce, his wife would receive about 30% of his estate, which is worth millions of dollars.

We have always had a good relationship with our father and we all live only a few kilometers apart. We get together at many family gatherings and always include my father’s wife. We’re all doing fine financially, but we’re very upset that this woman is getting so much money for just eight years together.

To complicate matters, my father is now very worried that she might harm him in order to get money. We don’t think she would, but my father refuses to leave his house and her lawyer advised her not to leave. We have offered him to rent or buy another house or condo but he refuses to go. We have hired caregivers 24/7 but his wife makes it difficult for them to take care of my father.

There was a marriage contract, but our lawyers said it was poorly written and would never stand up in court. Can you tell us where we can go to have this woman’s share of the estate reduced? We get that she’s probably going to get millions of dollars, but we honestly don’t think she deserves 30% of everything.

Reluctant stepdaughter in Florida

dear stepdaughter,

There are many moving parts and questions surrounding your father’s marriage and estate. Florida is an equitable distribution state, meaning its wealth is distributed fairly or equitably, whether it’s worth $10 million or $100 million. Anything earned before his marriage is usually considered separate property. Your letter indicates that he either did not work during his five-year marriage, or at least these were not his best earning years.

In Florida, a prenuptial agreement must be signed by both parties without undue influence or fraud and must not be unfair. On that last point, I spoke to family law attorney Patrick Baghdaserians, who is based in California but litigates and drafts prenuptial agreements. “If you have a spousal support provision that is too onerous and too aggressive, unprincipled at the time of enforcement, it’s not going to be enforceable,” he says.

A premarital contract would have helped your father protect the separated property and regulate the division of the community property during the marriage in the event of a divorce. But Baghdaserian notes, “If you marry and are already wealthy before marriage, whether you have a premarital contract or not, those assets are already separate property.” In your father’s case, it’s probably relatively easy to prove, especially considering the short time he’s been married.

Any effort he puts in during the marriage is considered a community effort, Baghdaserian adds. “If you keep working in the business, it can now become quasi-community ownership,” he says. “A premarital contract can define what happens to that part of the deal.” But from your letter, he says, it sounds like the lion’s share of your father’s business would qualify as separate property should he decide to divorce his wife.

Undue influence

Undue influence, coercion and pressure on a person who lacks capacity could constitute elder abuse. The National Center on Elder Abuse, a government agency affiliated with the US Administration on Aging, and the nonprofit National Adult Protective Services Association have resources and can help you with the steps you can take to report suspected abuse. You can also contact your father’s GP to check his health.

According to the National Council on Aging, an estimated 5 million Americans are affected by elder abuse each year, and several agencies say that number is both growing and underreported. If your father has a degenerative disease and he also has cognitive impairment, he may not be able to make decisions about his estate or may be under undue influence or coercion.

A typical scenario is when a person becomes isolated from a partner or adult child, friend, neighbor or caregiver, as is reportedly what happened with this estimated $60 million Malibu doctor. “Troubleshooting is a psychological process that can be used against an elder to commit two forms of elder abuse: financial exploitation or sexual abuse,” says the National Center on Law & Elder Rights. “Unlawful influence is also a legal concept.”

Is there a bad actor in this story? The “wicked stepmother” might be an easy target. I want to leave room for the possibility that your father’s illness may have led to cognitive decline and anxiety or paranoia about his own safety. Try not to let the fact that he secretly married his significant other create an atmosphere of suspicion. Don’t let your frustration that this woman will be a part of your father’s estate demonize her for no good reason.

Remaining Questions

It may be that his wife is doing her best to take care of him. Patrick Hicks, lead counsel at Trust & Will, an estate planning platform firm in San Diego, California, says there are some valuable insights for you and your father. “How would he like the family business to be run after his death? How would he like his inheritance to be distributed? It seems that there is a lot of blame and attention given to the woman and not enough attention given to the actual details of her father’s plan,” he says

“It’s interesting, but also a common concept, that marriage entails certain caring responsibilities for a spouse,” says Hicks. “Your ability to disinherit a spouse is often limited, and in many states the spouse has the option of taking a share or taking the will. And in a divorce this is different, but a fair division is common. Above all, it is critical to understand that your father has the right to create his own estate plan and dispose of his estate as he sees fit.”

While it may be difficult to come to terms with, Hicks says you have to respect your autonomy and your choices. “You may also want to consult an attorney to review the prenuptial agreement and make sure your father understands the consequences of his decisions,” he notes.

In other words, just because you don’t want your father’s wife to inherit any portion of his fortune doesn’t mean she’s a gold digger, a bad person, or that she poses a threat to your father’s well-being. You can be upset that his fortune is divided between his children and wife and she can still be a good person. These two things are not mutually exclusive. By all means, do your due diligence with doctors and a probate or family law attorney, and put your father’s health first.

You can email The Moneyist at qfottrell@marketwatch.com for financial and ethical questions and follow Quentin Fottrell on Twitter

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I’m afraid to tell my spouse: I’ve maxed out my credit cards and owed $100,000 because of my gambling addiction. Can you help?

-Quentin Fottrell

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