Does dad have the capacity to remarry? – Monterey Herald

Dear Readers, the following is a reprint of a column from 2021 as the question has now arisen, again. 

Question: My mom passed away five years ago and until now, dad had been doing pretty well on his own. Lately, however, he has become more forgetful and seems to lose track of dates. Also, I was visiting and saw that he had not paid his health insurance premium and they were threatening cancelation! On top of all this, dad recently told me he is thinking of marrying a neighbor. This woman is much younger, is a renter at the house where she is living and her twenty-something son is still living at home. Dad assures me that he has fun with her (I bet) and that she is not a gold digger. Dad is pretty wealthy and well, I will just come out and say it, if he marries her, we “kids” are afraid that she will spend his money! We never thought we would be in this position and are not sure what we should do. What do you think?

Answer: I think you are in a tough spot. It sounds like your dad has found someone to have fun with and it seems that he has serious feelings for her. So far, so good. If you had not mentioned the forgetfulness and appearance of loss of financial acuity, I might say let it ride and respect his decisions. However, studies show that ability and good judgment as it relates to handling finances is one of the first things to go if we experience cognitive decline.

Can you speak with your father and express your concerns? Chances are your dad has no intention of allowing the girlfriend to spend all his money nor would he intentionally cut you and your siblings out of an inheritance – if he can help it. Unfortunately, once married, not only does the law favor a spouse, but late-night pillow talk can have a huge influence on decisions when it comes to money. Pair these with diminishing capacity and you certainly have a recipe for the loss of an inheritance.

As I have said before, we are not entitled to inherit our parents’ wealth. That is a decision they make and, if we do inherit, it is truly a gift. That said, there is a difference between standing to inherit and having that inheritance taken away by a new young wife against your father’s better judgment.

Discuss your concerns with your dad and if he decides to marry anyway, ask him to at least get a prenuptial agreement signed. This offers some protection and if the girlfriend is truly just looking for money, this could scare her off. From a legal perspective, it would be difficult to assert that your father lacks mental capacity to marry. Of all the legal agreements we enter into, getting married requires the least amount of mental capacity! If they do marry and a prenup is broken, you can attempt to recoup your inheritance using a tortious interference lawsuit – meaning you would sue the new wife for interfering with your expected inheritance. This is an extremely difficult lawsuit to win and I would not recommend relying on that kind of remedy.

If your dad ends up getting married and a prenup is in place, try to be happy and supportive. We all deserve to have a second, third or even fourth chance at happiness.

Liza Horvath is a Licensed Professional Fiduciary and Certified Trust and Financial Advisor. Horvath currently serves as President of Monterey Trust Management. This is not intended to be legal, tax or investment advice. Questions? Call (831)646-5262 or email liza@montereytrust.com.