My stepfather, who was worth $14 million, put my mother in a facility — then they both died. He did not honor their prenup. What can I do?

Dear Quentin,

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I have read your column for years, and was particularly interested in your letters on estates and inheritance. I recently lost my elderly parents and now have a story of my own to tell. My mother just recently passed away last year in a dementia-care facility in upstate New York after surviving there through the COVID years — what a disaster that was.

My mother was placed in that dementia-care facility in 2018 by her husband of 26 years, my stepfather. He did not consult with my brothers or me at all about the placement or decision. I have two biological brothers. My stepfather had four children of his own from a previous marriage that helped him with this scheme.

I find this fact not only incredibly rude and disrespectful to us personally, but I find this evil in every way. He acted with a complete disregard of our existence. I consulted an attorney at the time, but there was not much I could do as my mother had assigned him as power of attorney and healthcare proxy years earlier.

I know that our stepfather was experiencing some health issues of his own, but he was the type of person not to reach out for help. Our mother was not ready for placement in the facility, and proved this by having her bags packed every time I had visited her in the facility for about a year and a half afterwards. She pleaded with us to “get her out of there.”

Story continues

No amendments were made

Eventually the disease progressed and she did begin to deteriorate and settle into her new living situation by the end of 2019. My stepfather passed away in January 2020. He was a businessman and had an accumulated wealth of $14 million. Before their wedding in 1992, they signed a prenuptial agreement covering their marriage, divorce and death.

No amendments were made to the agreement. My mother was due to receive half of his estate and his children were to receive the other half. Unfortunately, as you might imagine, his children do not want to honor that agreement or our parent’s wishes. My stepfather signed over the deed of their home to himself and then “sold” it to his children three days before he passed away.

This was our mother’s home that she lived in for the last 28 years, and her name was on the deed from the beginning after they built it together in 1992. Her personal belongings are in the home. As I stated earlier, I had contacted an attorney regarding these matters and he advised me that the real-estate transfer was fraudulent and the prenup is still in effect.

We are four years into the estate hearings, mediation sessions and the illegal house-transfer case. I see these legal matters as black and white, so we presented the facts and will let the judge rule. Am I missing something here? It is a shame that our relationships with our step siblings have been forever ruined by these abhorrent actions.

Disregarded Son

Dear Disregarded,

To cut you and your two brothers out of the picture is bad manners. To do so when there is $14 million at stake is just plain rude.

Whether or not your case succeeds depends on the wording of the prenup, whether your stepfather had a will, and other variables — including the judge presiding over your case. Such 11th-hour U-turns on previous commitments are not so unusual, however, for a step parent or step siblings. Alas, this column is replete with such torrid tales. Legal action is often a necessary last resort.

A prenup is written while both parties are alive, and requires both spouses to sign it. A will, however, only requires one spouse’s signature, and they may decide not to disclose its contents, or even its existence, to their spouse. That’s where you are now — in the middle of an unwelcome, expensive and timely court case against your step siblings.

Let’s assume your stepfather had a will. “A prenuptial agreement is a contract and, assuming it was properly negotiated and executed, it is enforceable in court,” according to Jewell Law, a matrimonial and family law firm based in New York. However, the prenup will likely not supersede a valid last will and testament, the law firm says.

“For example, if the prenup states that the surviving spouse is entitled to specific assets, but the deceased spouse’s will bequeaths those assets to someone else, the surviving spouse cannot challenge the will on the grounds that the prenup stated the assets would belong to the survivor,” it adds. “To be clear, a will controls the disposition of assets after death.”

But other legal experts are more optimistic. If the probate court decides that the prenuptial agreement was negotiated fairly by both spouses, “then it will likely be enforced,” according to the Schomer Law Group, which is based in El Segundo, Calif. But both firms say that, in cases such as this, a breach-of-contract suit can be brought against the deceased spouse’s estate.

Benazeer “Benny” Roshan, chair of Greenberg Glusker’s Trust and Probate Litigation Group, is confident about your case. “The facts seem very favorable to Disregarded Son, so if he prevails, he should seek to have the cost of his prosecution shifted to his step siblings,” she says. “Some states allow that relief, which is comforting to those who risk life and limb — financially speaking — to get justice for a deceased loved one.”

Prenuptial agreement versus a will

I am, however, more cautious about calling the outcome. Laws vary by state, and each case will have its own set of circumstances that could affect the court’s decision. In an ideal world, it’s best for couples — particularly those who are in second marriages and have blended families — to have a prenup or will that complement rather than contradict each other. It would save you a lot of time and money in legal fees.

Some prenups contain a “death clause,” where the spouses agree that, in the event one of them dies, the deceased spouse’s estate is either (a) transferred to the surviving spouse or (b) should be distributed to the deceased spouse’s heirs — in this case, your mother’s three sons. If your mother’s prenup contained such a clause, it could determine the success or not of your case.

And what if there was a prenup and no last will and testament? In that case, the prenup could be used to override intestacy laws in your state, but it cuts both ways. “The majority of states will not permit a spouse to write the other spouse out of her will entirely. Yet, in that same state, the court may allow a prenuptial agreement to do exactly that,” the Schomer Law Group adds.

As for the issues surrounding the house and your mother being put into care: If your mother and stepfather owned the house as joint tenants, your mother’s half would automatically transfer to your stepfather upon her death. If that happened here, it may be that his decision to sell the house, nudged on by his four children, was merely sharp practice.

And your mother’s power of attorney and healthcare proxy? The power to act depends on the wording of the POA. One lawyer told me that a durable power of attorney allows the agent to act even when your mother was competent, so your stepfather could have emptied her bank account; a health care proxy, on the other hand, is usually activated when the principal cannot make decisions for themselves.

If there was a question over cognitive abilities, a court order or the opinion of two physicians would typically be required to move her to a facility. The fact that she did not wish to be there is understandably upsetting for you. Should he have consulted you and taken her wishes into account? Probably. Given his vast wealth, he could have hired home help, at least until her condition worsened.

When the judge rules on your case, please update us on their decision.

Previous columns by Quentin Fottrell:

My dying father, who had stage 4 cancer, moved in with his girlfriend. In 3 months, she sold his house and pocketed the money.

‘I’d like a nest egg of my own’: My sister and I will inherit our mother’s house, but it’s miles from anywhere. Is it wrong to force her to sell?

I’m still on the deed of my ex-wife’s house, but our divorce decree says she gets the property. Am I sitting on a golden goose?

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