If a father remarries what happens to assets covered by an already existing Will and Trust?

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If a father remarries what happens to assets covered by an already existing Will and Trust?

My friend’s in-laws are in their late 70s. The mother-in-law is in an assisted living center with dementia. The father-in-law has been going with a woman in her 50s for several years. There is a large pension and a house at stake. There is also a Will and Trust in place. My friend’s husband has power of attorney over financial and medical issues. The father-in-law now wants a divorce to marry the other women. Is it easy to get a divorce from a woman with dementia? Can the sons protect their inheritance? Is there any way to prevent the other woman from getting it all in the end?

Asked on August 17, 2010 under Family Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

What needs to be done to protect the Mother and her assets (and I am assuming that at this stage they are both going to be considered marital assets for purposes of 50/50 distribution).  Someone - preferably not her husband - has to apply to be her conservator over her physical condition and her estate.  The Father will sue for divorce and her conservator will be able to make sure that her assets are protected.  Be aware, though, that the assets will go to her care in the nursing home depending on the facts of your case which are unknown to me here.  Now, there really is no way for the kids to protect the remaining assets from being spent by the Father.  I am assuming that the trust is revocable by the grantor (seek help with that if the Mother is also a grantor here) and his portion he can do with as he pleases after the divorce.  There is no requirement that you leave your children anything when you die.  You can spend it all in your lifetime.  Good luck.


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