It stops most of us in our tracks when we see an elderly man in a relationship with a much younger woman.
At first sight, it’s hard not to think the younger spouse is in it for the money.
True love does prevail in some cases, but litigation attorney Michael J. Fedalen of HFL Law Group, a Los Angeles-based law firm whose specialties include financial elder abuse, says marrying for money is a form of elder abuse that is spreading throughout the United States.
“Marriage can be a very dangerous and a valuable tool in abuse because there are all kinds of legal pitfalls,” Fedalen told Healthline. “Caregivers are forcing the elderly with limited mental capacity into confidential late-life marriage for the purpose of taking advantage of them financially.”
Because these types of marriages are difficult to discover, and largely go unreported, Fedalen says the California Legislature needs to reform some laws before the Baby Boomer generation becomes victim of undue influence, fraud, and coercion.
“Marriage policies go back to a different era and they don’t comport with the legislative intent to protect seniors. They have different motivations,” he said.
Men and Women Targeted Equally
The National Center on Elder Abuse (NCEA) reports that 90 percent of all elder abuse (including physical, sexual, emotional, and financial) is perpetrated by someone known to the victim.
In regards to financial abuse (anything from insurance scams and consumer fraud to misuse of credit cards, and more), Fedalen says statistics show that females are about two-thirds more likely to become victims.
However, when it comes to romantic relationships, the abuse tends to be even.
Julie Schoen, deputy director of the NCEA, says these scams are sometimes referred to as “Sweetheart Scams.”
While these scams can take many forms, she says a common scenario is that the elders have experienced a recent loss, such as the death of a spouse, and they find themselves befriended by someone younger.
“If children aren’t nearby or the person is isolated and depressed, they’re more vulnerable to this attention,” Schoen told Healthline. “The difficult thing is that if the older adult has capacity to make decisions then they are entitled to do what they want with their money.”
Fedalen sees this kind of situation a lot.
One of his clients is a concerned grandchild of a man who has three women working in his house.
“They all openly joke about who’s going to be the one to get him to marry them. This man has very low capacity. There’s no romance with him anymore. He sits around all day. The woman drive him around doing errands for him. He just really wants companionship,” said Fedalen.
One of the woman is a bank teller at the man’s bank.
“She has direct access to how much money he has. At this point, he’s either given away or had taken from him hundreds of thousands of dollars,” said Fedalen.
Schoen says staying connected to your parents and grandparents regularly can help with situations like this.
She shares a story of a man whose father became involved with the caregiver of his late wife and bought her a car as well as things for her kids.
“I was impressed with the man’s approach to the situation. He said, ‘It’s my dad’s money and if it makes him happy to do this, then OK. But what I’m very afraid of is that she will get him to sign his home over to her and he’ll end up homeless,’” said Schoen.
Schoen recommended that the man share his concerns with his father and suggest that he put his home in a trust so that it couldn’t be touched or signed away. The father agreed and was confident he did the right thing when they met with attorneys who drafted the trust.
“Sometimes you can’t have huge expectations, but you can find something that protects the elder and makes sense to them,” Schoen said.
She also says to discuss these matters before the elder is too vulnerable.
“Most of [NCEA’s] calls come after the holidays because children go home and see their parents and they notice memory lapses, weight loss, or an alarming relationship,” she said. “It can be hard to make the time to check in with them when you have your own life, but doing so can make them feel less isolated and alone.”
Loophole in the Law
While there is federal oversight on how nursing homes are run, there is no federal regulation on elder abuse when it comes to marriage.
This is a state-to-state issue that is mainly determined by the capacity of the individual at the time he or she entered the marriage.
“The legal definition of capacity is different than the medical definition, and a person’s capacity can fluctuate, so it’s really difficult to prove,” Schoen said. “Experts look at whether the person had capacity at the time to transfer funds or give power of attorney or enter marriage. It’s a fascinating area and emerging field.”
In California, Fedalen says the capacity bar to enter into a marriage is at the lowest end of the spectrum.
“A layperson who is considered to have no capacity can still legally enter into marriage, even if you get a conservatorship over that person, which is equivalent to a guardianship for an adult. The person still has the right to enter into a marriage unless you get an additional order preventing them,” he explained.
He says the law is in favor to marry because everyone has a constitutional right to do so.
“You can’t impede someone’s right to marry unless they have absolutely no capacity, so the problem isn’t so much that they’re agreeing to marry, but that there’s a way to get a confidential marriage in California, which doesn’t require one of the spouses to show up at the courthouse or to be seen by the person issuing the marriage license,” Fedalen said.
When this occurs, he says after the person dies, there’s no way for a family member to challenge that the person had no capacity to enter the marriage.
“As long as they crossed the Ts and dotted the Is, the marriage that no one even knew existed or [the fact that] the person never showed up at the courthouse can be unchallengeable, and not subject to being void,” he said.
Fedalen says the Omitted Spouse Doctrine further complicates things. The doctrine states that if a person executed a will before marriage, and then died before adding the spouse into the will, then there is a legal presumption that the person intended to include the new spouse but failed to do so before his or her death.
“This means that in California, the surviving spouse is entitled to all the community property, and then depending on how many kids he or she had, roughly a third to half of the estate goes to them,” he said. “You can have marriage right at the end of a person’s life and have allegations of no capacity or that the person was forced into marriage, yet there’s no way to challenge the surviving spouse.”
What Legal Action Can Be Taken?
Fedalen says there is a simple change to the Omitted Spouse Doctrine that could help protect elders from the marriage scam.
“It should be changed to state that marriages aren’t voidable post-death, unless there is an allegation of undue influence, fraud, coercion, et cetera, or you can prove elder abuse,” he stated. “Marriage is too powerful of a tool for abusers not to have some ability to challenge it.”
Until the law is changed, Fedalen says if you’re concerned that a family member is victim to the marriage scam, you can attempt to institute a conservatorship over that person and then have the marriage annulled or dissolved.
Schoen suggests contacting your local Adult Protective Services, which will come to the elder’s home and perform a capacity assessment.
“Many times they find that the person does have capacity, which doesn’t make the family happy, but it’s still worth the effort because now the person is on their radar,” she said.
She also recommends contacting your local law enforcement agencies.
“I know people often say they don’t do anything, but filing that police report gives you some documentation and shows you took a step,” she noted.
If you’re ready to turn to an attorney, the National Academy of Elder Law Attorneys can connect you with a reputable lawyer in your area.
If you can’t afford an attorney, Schoen says every state offers legal aid. Additionally, some senior centers can recommend local lawyers who do pro bono work.
And, of course, take caution when selecting an attorney.
“There’s so much opportunity for the elderly to fall prey to scams. When it comes to finding an attorney, be on the alert if someone is calling you or soliciting your business. Go through a credible resource. Do your homework. Get references. Interview a few. Protect yourself and loved ones,” said Schoen.