What are the legal rights of a spouse in a second marriage with an aging partner

UPDATED: Oct 1, 2022

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What are the legal rights of a spouse in a second marriage with an aging partner

My mother has been married to her second husband for over 45 years, for the last 20 years they have lived in separate residences. Now he is in his 90’s and is showing signs of instability in his thinking the second husband disagrees with that so he won’t see a doctor, there is a concern that his 60ish year old sons from his first marriage will convince him to sign over power of attorney to them without my mother’s knowledge. The husband is controlling of the money and he choose to live in separate residences and pay all her bills for the extra residence. They argue to much to live together, but have attended every family function and holiday as a couple. As an example, there is an annuity in the husband’s name only, from it he pays for my mother’s bills. Since the husband is controlling of the money and won’t add my mother’s name to the annuity, she is only a beneficiary after his death, if the son’s drain the annuity before he dies because they have access to it with the power of attorney, does my mother have any legal recourse against them? She lives at the mercy of her husband, so once he is gone, she won’t have any funds to hire an attorney for an expensive legal battle. Her social security is 800/month. Any advice is appreciated.

Asked on September 13, 2017 under Family Law, Missouri


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

Answered 5 years ago | Contributor

She is still his wife.  She has all the rights that a wife has under the law and she should exercise those rights NOW.  By that I mean if he is unstable - and I assume you mean mentally - she should step in and make application to be his Guardian and Conservator of his estate.  If she files it will force a competancy hearing.  Or maybe, she should file for divorce now, which sounds cruel I know but she needs to know now what she is entitled to, unless you already know.  What was purchased during the marriage?  Is there a Will?  Did she sign any pre or post nuptual agreements?  Anything earned during the marriage is marital property, even if only in his name.  The contributions to the annuity during the marriage is marital property even if the annuity was started prior to marriage. As for the son's draining his assets with a POA, they can be subject to scrutiny in a court battle but Mom can not afford that you said after Husband passes.  So go and check out her options now before it is too late.  Good luck.

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