What are the legal obligations of an elderly person to a terminally ill spouse?

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What are the legal obligations of an elderly person to a terminally ill spouse?

My parents are in their 80’s and have been unhappily married for 64 years. My father is terminally ill and caring for him is taking a toll on her own fragile health. My father also has dementia and is often uncooperative. He really needs to be in a nursing home, but that is financially not possible nor is having a paid caregiver on a regular basis. Can she just leave him if it gets too bad?

Asked on February 14, 2011 under Family Law, South Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

This is something your mother needs advice from a lawyer with elder law and/or family law (divorce) experience. As a general matter, a spouse can leave, BUT

1) Property and assets need to be divided among them--one spouse can't simply take the bank account, for example.

2) The other spouse may have a claim on certain income streams or benefits that the leaving spouse is entitled to.

3) The spouse who was left could seek divorce and look for support.

4) Since they are still married, if the spouse left behind is put into a nursing home or the like, that home may have a claim on the marital assets or income.

5) If the spouse left is not competent to care for himself, simply abandoning him could give rise to other forms of liability.

In short, while your mother can physically leave and not be present, that does not automatically end her legal and financial obligations, which is why she very much needs legal advice to determine her best course of action.

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