The Grey Divorce and Elder Abuse

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November 9, 2016; 6:00 PM – 9:00 PM

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Presentation Content Written Materials

Sherri Donovan

Hon. Deborah Kaplan

Hon. Judith Gische

Ann Pinciss Berman

Dr. Lauren Behrman

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THE GREY DIVORCE AND ELDER ABUSE NSTITUTE

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for November 9, 2016

Program Co-sponsors: NYCLA’s Family Court and Child Welfare Committee, Matrimonial Committee, Judiciary Committee and Elder Law Committee

CLE

Faculty: Hon. Judith Gische, App. Div., 1st Dept.; Hon. Deborah Kaplan, Statewide Coordinating Justice for Family Violence Cases; Sherri Donovan, Esq.; Ann Pinciss Berman, Esq.; Lauren Behrman, Ph.D

NYCLA

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours; 3 Professional Practice/Law Practice Management. This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification The Grey Divorce and Elder Abuse November 9, 2016; 6:00 PM to 9:00 PM

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

The Grey Divorce and Elder Abuse

Wednesday, November 9, 2016 6:00 PM to 9:00 PM

Program Co-sponsors: NYCLA’s Family Court and Child Welfare Committee, Matrimonial Committee, Judiciary Committee and Elder Law Committee

Faculty: Sherri Donovan, Esq; Hon. Deborah Kaplan, Statewide Coordinating Justice for Family Violence Cases; Hon. Judith Gische, App. Div., 1st Dept.; Ann Pinciss Berman, Esq.; Lauren Behrman, Ph.D

AGENDA

5:30 PM – 6:00 PM Registration

6:00 PM – 6:10 PM Introductions and Announcements

6:10 PM – 9:00 PM Presentation and Discussion .

The Grey Divorce By: Sherri Donovan, Esq. www.sherridonovan.com [email protected]

I recently represented “Francine” who wanted a divorce at the age of 91. When I asked why; Francine asserted that the men are cuter in Florida!

Divorce for couples over the age of fifty have been increasing for the past two decades, especially among those couples that are college-educated. The rate of divorce amongst these couples over the age of 50 has risen from one in ten in 1990 to nearly one in four today. Moreover, divorce rates for couples that are age 65 and older have more than doubled in this same period of time. This increase in the rates of the grey divorce can be found for both couples in which a spouse has been previously married and divorced, and for single-marriage couples.

One cause of the increase in divorce for elderly couples over the past two decades include increased education. A better-educated couple has more economic opportunities and increased financial stability, resulting in less stress over their financial future. However, an increase in education has the opposite effect for elderly couples. Economic opportunities due to being better educated generally result in having the financial resources available to be economically independent each other. Thus, it is easier for a spouse to decide to divorce should one not want to remain with the other spouse.

Another factor behind the increased divorce rate for older couples is the changing role of marriage in this society. Marriage was previously seen as a partnership rather than an emotional and economic bond, with each spouse having a role in the relationship (e.g. whether it was keeping the home, being the “breadwinner”, or raising the children.) The current view is of greater expectations within the marriage, particularly of emotional and physical fulfillment. A married couple is expected to be happy with their relationship. Divorce is the primary option should that happiness not exist. Other factors behind the increasing grey divorce rates are the reduced social stigma of divorce, longer lifespans, and introduction of “no-fault” divorce.

The consequences of divorce are unique for an elderly couple.Younger couples have time to recover financially and emotionally from a divorce. However, an older divorced person does not have as much time to reenter the workforce, rebuild their savings, find a new partner, or to engage in proper long-term planning. Thus, older divorcees tend to have only a fifth of the wealth of an older married couples or even older widowers. Older divorced persons can also rely on fewer public benefits, e.g. social security, than other married persons or widowers, making it difficult financially. It is important that an elderly person seeking a divorce, have a team of professionals. A matrimonial lawyer or mediator may need to work closely with an elder care lawyer, a health care manager, and/or a financial advisor. When assets are transferred, the cost of health aides, obtaining government benefits, types of residences available, and distribution of retirement and insurance funds are critical issues in a grey divorce.

An elderly couple contemplating divorce needs to seek advice about spousal support, property division, long-term care, and the role of adult children. Usually a grey divorce involves a long-term marriage. In long-term marriages, spousal support, also called maintenance of alimony, can be awarded if one spouse has more income than the other. Income will include retirement funds that are distributed and received on a regular basis. Social Security income available will be taken into account when considering the differences of income between the spouses. For marriages over twenty years, the New York Domestic Relations Law (Section 236) recommends maintenance (spousal support/alimony) for 30% – 50% of the length of the marriage. However, lifetime maintenance can still be awarded if there is a severe medical or financial need, and resources available.

Adult children may have anxiety and a negative reaction to their divorcing parents which could increase the stress level of the separating elderly couple. Adult children may be worried about who will take care of each parent and feel the burden of creating two households out of one for their parents. Adult children who received financial assistance from their parents, may not be able to depend on the availability of those funds after a divorce. Adult children may also be concerned that a new romantic partner will utilize or be the beneficiary of the family’s assets instead of themselves and grandchildren. Sometimes adult children take the side or come to the rescue of one parent over the other. The grey divorce can trigger psychological family dynamics. A mental health professional may be needed. Seniors divorcing may need and desire to continue to grandparent together. Terms should be negotiated for future grandparenting and attending family functions. In New York State the visitation laws protect grandparents.

Once divorced, many spouses consider finding a new partner or spouse. A pre-nuptial agreement may be strongly advisable to protect funds to provide for long term care and the family’s inheritance. Lastly, a guardian may be needed to make decisions for an elderly divorcing person who suffers from Alzheimer’s or Dementia and is incapable of day to day and/or long term, responsible judgements. With that said it is important that the grey divorce be completed in a matter that provides for the most fulfillment and happiness to each senior involved. It is also important for a senior citizen to update one’s will, power of attorney, and health care declaration at the start of a divorce proceeding. During the process of the division of assets in the grey divorce, one will still be considered married. Thus, the spouse one is divorcing can be entitled to make critical medical and financial decisions if it is not legally stated otherwise. There is precedential case law that if one dies before a judgement of divorce is granted and/or a separation or divorce agreement is signed and notarized, one’s spouse could obtain all of the wealth in the marriage, even if that was not the intention.

Elder abuse by a spouse or intimate partner may be psychological, physical, emotional, economic, and/or sexual. It can occur over a long period of time due to the victim, mostly older women, being afraid to leave, a deterioration of mental and physical abilities, economic dependance, fear of institutionalization, shame, guilt, values, culture and a lack of information about alternatives. Late onset domestic violence can also occur in senior intimate relationships due to worsening illness, the perpetrator’s frustration of being burdened and frustrated with increased responsibilities, retirement, and sexual change. Signs of elder abuse in a victim include frequency and severity of injuries, attempted suicide, delay of medical assistance, missed appointments, and intensification of depression, fear and trauma. A perpetrator may minimize or deny the complaints and injuries, blame and criticize his partner, threaten harm, engage in isolation of the victim, utilize alcohol or drugs and/or attempt suicide.

Elder abuse is a crime. A spouse or intimate partner is entitled to an order of protection and police protection. Emergency shelter and support groups are available. Resources include the National Domestic Violence Hotline at 1-800-799-SAFE; Eldercare Locator at 1-800-677-1116; elderabusecenter.org; National Center on Elder Abuse at 202-898- 2586.

An Overview of Elder Abuse: A Growing Problem ALLAbuse in Later Life

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Additional information sheets may be found at: www.ncall.us/content/ALL

The National Clearinghouse on Abuse in Later Life (NCALL) focuses on program and policy development, technical assistance, and training on abuse in later life: the nexus between domestic violence, sexual assault, and elder abuse, neglect, and exploitation. For more information please visit: www.ncall.us or call: 608-255-0539. 7KLVSURMHFWZDVVXSSRUWHGE\*UDQW1R7$$;.DZDUGHGE\WKH2IÀFHRQ9LROHQFH$JDLQVW:RPHQ86'HSDUWPHQWRI -XVWLFH7KHRSLQLRQVÀQGLQJVFRQFOXVLRQVDQGUHFRPPHQGDWLRQVH[SUHVVHGLQWKLVSXEOLFDWLRQDUHWKRVHRIWKHDXWKRUDQGGRQRW QHFHVVDULO\UHÁHFWWKHYLHZVRIWKH'HSDUWPHQWRI-XVWLFH2IÀFHRQ9LROHQFH$JDLQVW:RPHQ © %%RRPHULQ'HQLDOPRUJXH)LOH

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9LFWLP$JH Where Abuse Happens :KHQGH¿QLQJHOGHUDEXVHPRVWVWDWHVWULEHVDQG $EXVHLQODWHUOLIHFDQWDNHSODFHLQany setting RUJDQL]DWLRQVXVHDPLQLPXPDJHWKUHVKROGWKDW HJDKRXVHDSDUWPHQWUHVLGHQWLDOKHDOWKFDUH UDQJHVIURPWR7KHWHUPDEXVHLQODWHUOLIH VHWWLQJDGRFWRU¶VRI¿FHRULQDSXEOLFSODFHVXFK DSSOLHVWRYLFWLPVZKRDUHDJH50 and older for the DVDWZRUNRULQDFRXUWKRXVH 0RVWRIWHQLW following reasons: RFFXUVZKHUHWKHYLFWLPUHVLGHV %\DJHWKHUHLVDVLJQL¿FDQWGHFUHDVHLQWKH QXPEHURIYLFWLPVDFFHVVLQJVHUYLFHVIURP GRPHVWLFYLROHQFHDQGVH[XDODVVDXOWSURJUDPV 7KLVLVSDUWO\EHFDXVHPDQ\VHUYLFHVIRU GRPHVWLFDQGVH[XDODVVDXOWYLFWLPVIRFXVRQ PHHWLQJWKHQHHGVRI\RXQJHUZRPHQDQGWKHLU FKLOGUHQ0RVWGRPHVWLFDQGVH[XDOYLROHQFH SURJUDPVGRQRWKDYHSURJUDPPLQJWDLORUHGWR PHHWWKHXQLTXHQHHGVRIYLFWLPVRIDEXVHLQ ODWHUOLIHVXFKDV¿QDQFLDOSODQQLQJIRUSHUVRQV ZKRGRQRW\HWTXDOLI\IRU6RFLDO6HFXULW\RU VXSSRUWJURXSVH[FOXVLYHO\IRUROGHUZRPHQ 9LFWLPVZKRDUHDJHDQGROGHUPD\QHHG HFRQRPLFDVVLVWDQFHWRREWDLQVDIHKRXVLQJDQG © keeshu/MorgueFile OLYHLQGHSHQGHQWO\LIWKH\FKRRVHWROHDYHWKHLU 5HVSRQGLQJWR$EXVHLQ DEXVHU+RZHYHUYLFWLPVZKRDUHDJHWR PD\EHLQHOLJLEOHIRU¿QDQFLDODVVLVWDQFH Later Life IURPWKH7HPSRUDU\$VVLVWDQFHIRU1HHG\ %\XQGHUVWDQGLQJWKHXQLTXHG\QDPLFVRIDEXVHLQ )DPLOLHVSURJUDPEHFDXVHWKH\PD\QRWEH ODWHUOLIHGRPHVWLFDQGVH[XDOYLROHQFHDGYRFDWHV SDUHQWLQJFKLOGUHQ7KH\DOVRPD\EHLQHOLJLEOH FDQPDNHDGLIIHUHQFH0DQ\ROGHUYLFWLPVRI IRU6RFLDO6HFXULW\DQGDJLQJQHWZRUNVHUYLFHV DEXVHEHQH¿WIURPUHPHGLHVRIIHUHGE\GRPHVWLF EHFDXVHWKH\DUHWRR\RXQJ)HZRSWLRQVH[LVW RUVH[XDOYLROHQFHSURJUDPVVXFKDVVDIHW\ WRDVVLVWYLFWLPVLQWKLVDJHJURXSZKRZDQWWR SODQQLQJLQGLYLGXDORUJURXSFRXQVHOLQJ EHFRPHLQGHSHQGHQWIURPWKHLUDEXVHUEXWGR HPHUJHQF\KRXVLQJDQGPHGLFDORUOHJDODGYRFDF\ QRWKDYHWKH¿QDQFLDOUHVRXUFHVWRGRVR 7KHFULPLQDOMXVWLFHV\VWHPPD\SOD\DEHQH¿FLDO $JHLQFOXGHVROGHUYLFWLPVZKRKDYHD UROHE\KROGLQJWKHRIIHQGHUDFFRXQWDEOH*LYHQ VKRUWHUOLIHH[SHFWDQF\EHFDXVHWKH\ WKHFRPSOH[LW\RIWKHVHFDVHVFROODERUDWLRQZLWK H[SHULHQFHGWUDXPDOLYHGLQSRYHUW\RU WKHDJLQJVHUYLFHVQHWZRUNDGXOWSURWHFWLYH ODFNHGDFFHVVWRKHDOWKFDUH VHUYLFHVKHDOWKFDUHSURYLGHUVDQGRWKHUVLVRIWHQ HVVHQWLDO 'DYLG%OXPHQNUDQW])OLFNU

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5HIHUHQFHV $FLHUQR5Elder Mistreatment Facts and Figures: The National (USA) Elder Mistreatment Study. 3DSHU SUHVHQWHGDWWKH)RUXPRQ*OREDO9LROHQFH3UHYHQWLRQ:DVKLQJWRQ'& $FLHUQR5HWDO³3UHYDOHQFHDQG&RUUHODWHVRI(PRWLRQDO3K\VLFDO6H[XDODQG)LQDQFLDO$EXVHDQG 3RWHQWLDO1HJOHFWLQWKH8QLWHG6WDWHV7KH1DWLRQDO(OGHU0LVWUHDWPHQW6WXG\´American Journal of Public Health %DQFURIW/Why Does he Do That? Inside the Minds of Angry and Controlling Men.1HZ

In 2006, NCALL adapted the Power and Control Wheel, developed by the Domestic Abuse Intervention Project, Duluth, MN. Resource updated, April 2011.

National Clearinghouse on Abuse in Later Life (NCALL) A Project of End Domestic Abuse Wisconsin 1245 East Washington, Suite 150, Madison, Wisconsin 53703 Phone: 608-255-0539 • Fax/TTY: 608-255-3560 • www.ncall.us • www.wcadv.org

Tactics Used by Abusers During 2005, NCALL staff asked facilitators of older abused women’s support groups to have participants review the Duluth Domestic Abuse Intervention Project’s Power and Control Wheel. Over 50 survivors from eight states responded. NCALL created this Abuse in Later Life Wheel from their input.

In addition to the tactics on the wheel, many offenders justify or minimize the abuse and deny that they are abusive. Perpetrators of abuse in later life may make comments like “she’s just too difficult to care for” or “he abused me as a child” to blame the victim, or try to minimize the abuse by stating the victim bruises easily or injuries are the incidental result of providing care. The list below provides additional examples of some of the behaviors victims might experience under each tactic included on the wheel.

Physical Abuse Ridicules Personal and Cultural Values x Hits, chokes, burns, pinches, throws x Disrespectful of cultural practices things x Ignores values when making decisions x Restrains elder to chair or bed Uses Family Members Sexual Abuse x Misleads family members regarding x Sexually harms during care giving condition of elder x Forces sex acts x Excludes or denies access to family x Forces elder to watch pornography Isolates Psychological Abuse x Controls what elder does, who they see x Engages in crazy-making behavior and what they do x Publicly humiliates x Denies access to phone or mail Emotional Abuse Uses Privilege x Yells, insults, calls names x Speaks for elder at financial and medical x Degrades, blames appointments x Makes all major decisions Targets Vulnerabilities and Neglects x Takes or denies access to items needed for Financial Exploits daily living x Steals money, titles, or possessions x Refuses transportation x Abuses a power of attorney or x Denies food, heat, care, or medication guardianship x Does not follow medical Threatens recommendations x Threatens to leave or commit suicide x Refuses to dress or dresses x Threatens to institutionalize inappropriately x Abuses or kills pet or prized livestock Denies Access to Spiritual & Traditional x Displays or threatens with weapons Events x Refuses transportation or access x Destroys spiritual or traditional items of importance

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082

Both void and voidable marriages are void ab KeyCite Yellow Flag - Negative Treatment initio, difference between them being that Distinguished by People v. Tejeda, N.Y.A.D. 1 Dept., July 14, 2016 parties to void marriage are free to treat 73 A.D.3d 103 marriage as nullity without court’s involvement, Supreme Court, Appellate Division, Second while voidable marriage may be treated as Department, New York. nullity only if court has made requisite pronouncement. McKinney’s DRL §§ 5, 6, 7. Christopher CAMPBELL, etc., et al., respondents, v. 2 Cases that cite this headnote Nidia Colon THOMAS, appellant, et al., defendants.

March 16, 2010. [2] Wills Abandonment, desertion, nonsupport, separation, or divorce Synopsis

Background: Action was brought for judgment declaring Woman who married mentally incompetent man null and void marriage between defendant and decedent, technically had legal right to elective share as as well as change in beneficiary in decedent’s retirement surviving spouse, even though marriage was account, and change in ownership of his bank accounts. annulled after his death. McKinney’s EPTL The Supreme Court, Putnam County, Shapiro, J., denied 5–1.2; McKinney’s DRL § 140(c). plaintiffs’ motion for summary judgment, and they appealed. The Supreme Court, Appellate Division, 36 A.D.3d 576, 828 N.Y.S.2d 178, reversed and remitted. On 2 Cases that cite this headnote remittitur, the Supreme Court, Putnam County, Andrew P. O’Rourke, J., entered judgment in plaintiffs’ favor, and denied defendant’s motion to modify or vacate order. Defendant appealed. [3] Statutes Relation to plain, literal, or clear meaning; ambiguity Holdings: The Supreme Court, Appellate Division, Prudenti, P.J., held that: Literal terms of statute should not be rigidly

[1] applied if to do so would be to ordain statute as defendant had legal right to elective share as decedent’s instrument for protection of fraud. surviving spouse, but

[2] she forfeited any rights that would flow from marital 1 Cases that cite this headnote relationship.

Affirmed. [4] Action Illegal or immoral transactions

No one shall be permitted to profit by his own West Headnotes (5) fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. [1] Marriage Effect of Informal or Invalid Marriage or Union 7 Cases that cite this headnote © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082

A. GAIL PRUDENTI, P.J., HOWARD MILLER, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

Opinion [5] Wills Waiver, Release, or Forfeiture of Right **462 PRUDENTI, P.J.

Wife procured marriage through overreaching and undue influence, and thereby forfeited any *104 Elder abuse, including the financial exploitation of rights that would flow from marital relationship, elderly individuals who have become mentally including statutory right she would otherwise incapacitated, is an “often well hidden problem” (Bailly, have had to elective share of husband’s estate, Supp Practice Commentaries, McKinney’s Cons Laws of even though wife had known husband for 25 NY, Book 34A, Mental Hygiene Law § 81.14, 2010 years, had close relationship with him, and had Pocket Part, at 36), in part because the perpetrator of such been legitimately named as one of several conduct is in many cases a member of the *105 victim’s 1 beneficiaries of his retirement account, where family. With “the demographics promis[ing] a greater wife was aware of husband’s lack of capacity to percentage of older Americans in the next thirty years” consent to marriage, and waited until his (Matter of Astor, 13 Misc.3d 1203[A], 2006 N.Y. Slip Op daughter left for vacation to marry him, without 51677[U], *5, 2006 WL 2546192 [Sup. Ct. New York informing daughter or any other family County] ), this problem has begun to receive increasing 2 members, then quickly arranged to have her attention. New York, however, does not yet have a name added to husband’s bank account, and statute specifically addressing a situation in which a secretly made herself sole beneficiary on his person takes unfair advantage of an individual who retirement account. McKinney’s EPTL 5–1.2; clearly lacks the capacity to enter into a marriage by McKinney’s DRL § 140(c). secretly marrying him or her for the purpose of obtaining a portion of his or her estate at the expense of his or her intended heirs. When a marriage to which one of the 4 Cases that cite this headnote parties is incapable of consenting due to mental incapacity is not annulled until after the death of the nonconsenting party, a strict reading of the existing statutes requires that the other party be treated as a surviving spouse and afforded a right of election against the decedent’s estate, without regard to whether the marital relationship itself *103 **461 APPEAL by the defendant Nidia Colon came about through an exercise of overreaching or undue Thomas, in an action, inter alia, for a judgment declaring influence by the surviving party. On this appeal, we have that the marriage between Howard Nolan Thomas and occasion to consider whether the surviving party may her is null and void, from an order of the Supreme Court nonetheless be denied the right of election, based on the (Andrew P. O’Rourke, J.), dated January 31, 2008, and equitable principle that a court will not permit a party to entered in Putnam County, which denied her motion to profit from his or her own wrongdoing. modify or vacate an order of the same court dated June 21, 2007, which upon remittitur from this Court (see In early 2000 Howard Nolan Thomas was diagnosed with Campbell v. Thomas, 36 A.D.3d 576, 828 N.Y.S.2d 178), terminal prostate cancer and severe dementia, which was among other things, in effect, directed the entry of apparently attributable to Alzheimer’s disease. In judgment (a) in favor of the Estate of Howard Nolan February 2001 Nancy Thomas, Howard’s daughter and Thomas and against her in the sum of $101,997, and (b) primary caretaker, went away on a one-week vacation, declaring that she “shall have no legal rights and can and left Howard, who was then 72 years old, in the care of claim no legal interest as a spouse of Howard N. the defendant Nidia Colon Thomas, who was then 58 Thomas.” years old. Nancy and two of Howard’s other children, the plaintiffs Christopher Campbell and Keith Thomas, *106 Attorneys and Law Firms later learned that, during Nancy’s vacation, Nidia had married Howard, and had subsequently transferred his Warren Wynshaw, P.C., Fishkill, N.Y., for appellant. assets into her name. Specifically, Nidia caused the Christopher Campbell, Alameda, California, respondent ownership of an account at the defendant Citibank worth pro se. $150,000 to be changed from Howard individually to Nidia and Howard jointly, and caused herself to be named

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082 as the sole beneficiary of Howard’s account with the be sedated and restrained, and “would pull out his IV defendant New York City Teachers’ Retirement System tubes and catheter.” In her affidavit, Nancy explained (hereinafter TRS), valued at $147,000.3 Howard died in that, late in 2000, Howard’s primary care physician August 2001. advised her that “there was nothing more that could be done for [Howard,] and it was simply a matter of time **463 In November 2001 Christopher, Nancy,4 and Keith until the [prostate cancer] took its course.” Nancy stated commenced this action against Nidia in the Supreme that she then conveyed this information to Nidia. Court, seeking, inter alia, a judgment declaring Nidia’s According to Nancy, when Nancy found out about the marriage to Howard, as well as the changes to the bank marriage in March 2001 and confronted Howard about it, account ownership and the TRS account beneficiaries, to Howard had no awareness of the marriage, and adamantly be null and void. They contended that Howard lacked the denied that it had occurred, stating: “What are you talking legal capacity to enter into the marriage or execute the about? ... I’m not married ... Are you crazy?” Nancy changes to his accounts due to his severe dementia, the further asserted that Howard kept his will in a safe at his effects of the medications he was taking at the time, and home, and had shown her the will in the fall of 2000, but the progression of his cancer. The plaintiffs later amended that when Howard died, Nidia claimed that she was their complaint to add causes of action alleging undue unable to locate the will, despite having looked in the influence, conversion, and fraud. safe. The will, however, was later produced by Nidia’s attorney. Meanwhile, in November 2001, Christopher filed a petition for probate and letters of administration CTA in **464 Peter averred that, despite having a close and the Surrogate’s Court. In December 2002 Howard’s will, loving bond with his grandfather throughout his which was dated March 24, 1976, and provided that if his childhood, he began to notice bizarre behavior on first wife predeceased him, his estate was to be divided Howard’s part in 1999. During his hospitalization, equally among his children, was admitted to probate. In Howard became “belligerent and aggressive” and January 2003 Christopher was issued letters of “threatened to kill [Peter],” and then failed to recall administration CTA. In May 2003 Nidia filed a right of behaving in that manner when confronted with it later. election, which Christopher challenged. Since the Peter stated that, beginning in 2000, Howard “required Surrogate’s Court and the parties agreed that the constant supervision,” and “would soil himself,” requiring determination of the right-of-election issue would depend Nancy or Peter to clean him, “because he had lost the upon the outcome of the dispute in the Supreme Court as ability to understand that he needed to be clean.” As Peter to the validity of Nidia’s marriage to Howard, the recalled, on one occasion in 2000, Howard walked out of Surrogate’s Court stayed the proceedings before it, Nancy’s house, where he was living temporarily, and was pending the resolution of the action in the Supreme Court. found several blocks away in a confused state of mind. As further recounted by Peter, after Howard “ran away” on In the Supreme Court, the plaintiffs moved for summary one or more additional occasions, Nancy decided that judgment, in effect, on their causes of action seeking a Howard should move back into his own home, where she judgment declaring the marriage and the changes to the would *108 continue to care for him, with the assistance bank account ownership and the TRS account of others, including Nidia. beneficiaries to be null and void. They submitted, inter alia, affidavits from Christopher, *107 Nancy, and In addition to describing Howard’s diminished mental Nancy’s son Peter, all of whom attested to the abilities, Christopher alleged in his affidavit that, deterioration of Howard’s mental condition. approximately one month prior to Howard’s death, Nidia sold a portion of a parcel of land owned by Howard for According to Nancy, during the last three years of the sum of $90,000, and deposited the proceeds of the sale Howard’s life, his dementia had caused him to become into the now-joint Citibank account. As of the date of “paranoid, extremely forgetful, and prone to temper Christopher’s affidavit, the balance of the Citibank outbursts.” As she explained it, he “experienc[ed] great account was 54 cents. confusion as to who various individuals were,” and called almost all females “Nancy.” Nancy asserted that, when The plaintiffs also submitted medical records as well as she took Howard out of the house, he required constant affidavits, one from Howard’s primary care physician, monitoring, since he tended to “wander off or just remain who treated him for the last 13 years of his life, and one standing in one spot with a fixed stare.” As recounted by from a neurologist. Both physicians, who examined Nancy, during two different hospital stays, Howard could Howard in the fall of 2000, confirmed that he suffered not feed himself, was “combative and aggressive,” had to from “severe dementia” and asserted that his condition

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082 made it inadvisable for him to be left unsupervised, “even known about Howard’s medical condition, as described for a minute.” Both physicians recommended that Howard by the physicians in their affidavits submitted in support be placed in a nursing home, and they both would have of the plaintiffs’ summary judgment motion, he would not supported an application for the appointment of a legal have performed the wedding ceremony. guardian for Howard. As explained by the physicians, and corroborated by the medical records, Howard was taking In their reply papers, the plaintiffs referred to Nidia’s numerous prescribed medications, including psychotropic assertion in her prior affidavit that Howard changed the medication. As one of the physicians described it, Howard beneficiary of his retirement account without her “was confused and had lost the mental capacity to provide knowledge or assistance—an assertion which Nidia for himself or understand his legal and financial affairs,” repeated in her affidavit opposing the plaintiffs’ motion and his mental condition continued to deteriorate after for summary judgment. The plaintiffs pointed out that, in October 2000. deposition testimony which they had also submitted in support of their motion, Nidia had admitted that the In addition, the plaintiffs submitted Nidia’s affidavit in handwriting on the change-of-beneficiary form was hers, opposition to their prior motion for a temporary thus exposing the representations made in her affidavits as restraining order, in which Nidia made the following untruthful. statement: In an order dated October 1, 2004, the Supreme Court “The plaintiffs claim that I tricked denied both the plaintiffs’ motion and Nidia’s cross [Howard] into transferring the TRS motion, concluding that there were triable issues of fact as Account into my name. The fact is to whether Howard was capable of consenting to the that I did not know that he had marriage. On the plaintiffs’ appeal, this Court concluded transferred the account until three that the plaintiffs made a prima facie showing of their months after [his] death. He had entitlement to judgment as a matter of law by taken the steps to make the transfer demonstrating that Howard “lacked the capacity to without my knowledge or my understand his actions before his marriage, and that his help.” mental state only diminished thereafter” (Campbell v. Thomas, 36 A.D.3d 576, 576, 828 N.Y.S.2d 178), and In opposition to the plaintiffs’ motion, and in support of that the evidence submitted by Nidia in opposition failed her cross motion for summary judgment, in effect, to raise a triable issue of fact. Accordingly, this Court declaring that the marriage and transfers of the accounts reversed the Supreme Court’s order insofar as appealed are valid, Nidia submitted her own affidavit, in which she from, granted the plaintiffs’ motion for summary averred that she and Howard met in 1975, after Howard’s judgment, and remitted the matter to the Supreme Court first wife died. Nidia explained that Howard was a school “for the entry of a judgment declaring null and void (1) principal, while she was a school safety officer. the marriage between the *110 defendant Nidia Colon According to Nidia, she and Howard had a 25–year Thomas and the decedent Howard Nolan Thomas, (2) a relationship, during which Howard asked her to marry change in beneficiary in Howard Nolan Thomas’ *109 him on four occasions: in 1979, in 1980, in 1981, Teacher’s Retirement System of the City of New York and in 2001. Nidia claimed that she accepted the last account, and (3) a change in the ownership of Howard proposal, even though she knew that Howard’s children Nolan Thomas’ Citibank accounts” (id.). were against it. According to Nidia, “while [Howard] did have moments of forgetfulness, he did seem to have the Subsequently, the Supreme Court issued an order, dated requisite mental capacity to enter into the marriage **465 June 21, 2007, in which it made certain “findings vows.” Nidia’s relationship with Howard was not consistent with the ruling of the Appellate Division.” The exclusive; she admitted during her deposition that she was Supreme Court found that Nidia had admitted that “she aware during Howard’s lifetime that he was dating other had the ‘beneficial use’ of, at a minimum, $101,997.00 women. According to Christopher’s affidavit, Howard from [Howard’s] Citibank account,” and, in effect, jointly owned property with one such woman. directed the entry of a judgment in favor of Howard’s estate and against Nidia in the amount of $101,997. The Nidia also submitted affidavits from the pastor who order also, in effect, directed the entry of a judgment performed the wedding ceremony in a church and the two declaring that Nidia “shall have no legal rights and can witnesses to the marriage, each of whom asserted that claim no legal interest as a spouse of [Howard].” In Howard “knew that he was marrying Nidia Colon.” The addition, the order provided, among other things, that pastor, however, testified at a deposition that, had he Nidia was to provide a complete accounting to the

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082 plaintiffs of all the property, money, and interests she Matter of Moncrief, 235 N.Y. 390, 139 N.E. 550; Jones v. obtained from Howard; that the TRS was to make Keith, Brinsmade, 183 N.Y. 258, 76 N.E. 22; Matter of Skagen Peter, and Christopher the sole beneficiaries of Howard’s v. New York City Employees’ Retirement Sys., 108 retirement account; that Citibank was to provide a Misc.2d 448, 450, 437 N.Y.S.2d 497; Metcalfe v. Cutler, complete accounting to Howard’s estate of all of certain 52 N.Y.S.2d 71, 73, affd. 269 App.Div. 655, 53 N.Y.S.2d bank accounts in which Howard had an interest, and those 459). accounts would be placed in the sole name of Howard’s estate; and that Howard’s estate was to be “given In Matter of Moncrief, where a child’s parents were ownership of all property in the **466 name of Howard married on the day after she was born, but the marriage N. Thomas as of October 1, 2000,” and the estate was to was later annulled on the ground of duress, the Court of distribute those funds to Keith, Peter, and Christopher in Appeals held that, despite a statute providing that a child one-third shares. whose parents are later married was deemed legitimate, the child could not be considered legitimate because her Subsequently, Nidia moved in the Supreme Court to parents’ marriage was a nullity. The Court explained that, modify or vacate the order dated June 21, 2007. In an at common law, whether a marriage was void or voidable, order dated January 31, 2008, the Supreme Court denied the courts were empowered to declare it void, and “[s]uch Nidia’s motion, and Nidia now appeals. a decree rendered the marriage void from the beginning” (235 N.Y. at 393, 139 N.E. 550). Although a statute On appeal, Nidia contends that the Supreme Court’s order enacted in 1830 provided that certain marriages were dated June 21, 2007, improperly directed the entry of a absolutely void and certain other marriages were void judgment declaring that she “shall have no legal rights “from the time their nullity shall be declared by a court of and can claim no legal interest as a spouse of Howard N. competent authority,” the Court concluded that the Thomas.” Nidia argues that, under the applicable statutes, Legislature did not intend to alter the well-established rule she is considered a surviving spouse even if the marriage that, when a Court annulled a voidable marriage, the is subsequently annulled or voided, and is, therefore, marriage was void ab initio (id. at 394, 139 N.E. 550 entitled to an elective share of Howard’s estate. [internal quotation marks omitted] ). The Court reasoned that: [1] This Court concluded that the marriage between Nidia and Howard was null and void on the ground that Howard **467 “Consent is essential to the contract. No consent, was “incapable of consenting to a marriage for want of no marriage. The court finds no consent. It, therefore, understanding” (Domestic Relations Law § 7[2] ). The *112 nullifies the marriage. It declares there was no Domestic Relations *111 Law deems such a marriage to marriage. From that moment the marriage is void. As be voidable, meaning that the marriage “is void from the we have seen a void marriage is void for all purposes time its nullity is declared by a court of competent from its inception. All that was meant was that no jurisdiction” (Domestic Relations Law § 7). This status is longer might husband and wife upon their own distinct from that of certain other marriages—incestuous responsibility determine that they were free from the marriages (Domestic Relations Law § 5) and bigamous contract. Such a determination required the marriages (Domestic Relations Law § 6)—which the law concurrence of the court. Only when that was obtained deems to be absolutely void. The distinction, however, is did the marriage become void. But when it was not that void marriages are nonexistent from the obtained the marriage was nullified and all the beginning, while voidable marriages are valid until consequences of a void marriage then followed” (id.; declared invalid. That is the distinction between see Jones v. Brinsmade, 183 N.Y. 258, 262, 76 N.E. 22 annulment and divorce. Rather, as a general rule, both [“when a voidable marriage has been set aside by a void and voidable marriages are void ab initio, the decree of nullity, the parties are regarded as having difference between them being that the parties to a void never been married”]; Matter of Skagen v. New York marriage (and everyone else) are free to treat the marriage City Employees’ Retirement Sys., 108 Misc.2d at 450, as a nullity without the involvement of a court, while a 437 N.Y.S.2d 497 [Domestic Relations Law § 7 voidable marriage may be treated as a nullity only if a “would be a superfluous statute if its sole meaning court has made the requisite pronouncement (see Sleicher were to establish that the marriage is void only from the v. Sleicher, 251 N.Y. 366, 369, 167 N.E. 501 [“A time of a declaration by the court to that effect. The marriage procured by fraud is voidable, not void. Even so, same is true of the effect of any court decree.... Once annulment when decreed, puts an end to it from the annulled[,] ... [a] marriage is deemed erased as if it beginning. It is not dissolved as upon divorce. It is effaced never took place. In that respect it is very much unlike as if it had never been”] [internal citations omitted]; a divorce, which serves to legally terminate a marriage deemed to have validly existed”] ). © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082

constitute valid consideration for a gift in In (Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501), the contemplation of the marriage; to make a remarriage by Court of Appeals applied the principle set forth in Matter one of the parties during its continuance bigamous; of Moncrief, and concluded that, when a wife’s second and, by statute in this state, to legitimatize any children marriage was annulled on the ground of fraud, her right to born of the union. alimony from her first husband, which, pursuant to their separation agreement, was to continue “so long as she “By writing section 1140–a into the law, the legislature remains unmarried,” was revived (251 N.Y. at 368, 167 has chosen, without regard to whether the marriage is N.E. 501 [internal quotation marks omitted] ). Taken to its void or voidable, to attach to annulled marriages logical conclusion, the rule applied by the Court would sufficient validity and significance to support an award have required the first husband to make all alimony of alimony, in other words, to serve, the same as any payments, including retroactive payments for the period valid marriage would, as the foundation of a continuing during which the wife apparently was married to the duty to support the wife after the marriage is second husband, since the second marriage, once terminated” (308 N.Y. at 225, 124 N.E.2d 290 annulled, had no legal existence and thus could not [citations omitted] ). terminate the first husband’s alimony obligation. The Court, however, limited its holding to the period The Court of Appeals subsequently held that the Sleicher following the annulment of the second marriage, rule should no longer be applied to revive a support reasoning that, although the first husband “must now obligation upon *114 the annulment of a second marriage comply with the mandate of the judgment of divorce and in any case, even where the remarried spouse was not provide for his former wife as for one who has not statutorily entitled to support from his or her second remarried,” this did not mean “that he must provide for spouse (see Denberg v. Frischman, 17 N.Y.2d 778, 270 her during the years when the voidable remarriage was in N.Y.S.2d 627, 217 N.E.2d 675, affg. 24 A.D.2d 100, 264 force and unavoided” (id. at 369, 167 N.E. 501). N.Y.S.2d 114). Yet, despite this exception to the general rule that an annulled marriage is treated as void ab initio, *113 The Court of Appeals later confronted the same and the other exceptions described in Gaines, it does not scenario in (Gaines v. Jacobsen, 308 N.Y. 218, 124 appear that the Court of Appeals has overruled Matter of N.E.2d 290). In that case, the Court held that the Moncrief or the earlier decisions on which it relied. annulment of the second marriage did not revive the first husband’s support obligation, noting that, at the time of We turn, then, to the question of whether this Court’s the Sleicher decision, a wife was not entitled to alimony determination that Nidia’s marriage to Howard was null upon the annulment of a marriage, which would have left and void renders the marriage void ab initio for purposes the wife in that case without any means of support if the of the right of election Nidia has asserted. The Domestic first husband’s alimony obligation had not been revived. Relations Law provides that: The Gaines Court observed that the Legislature had since enacted Civil Practice Act § 1140–a (now Domestic “An action to annul a marriage on the ground that one Relations Law § 236), which allowed for spousal of the parties thereto was a mentally ill person may be maintenance upon the annulment of a marriage, and maintained at any time during the continuance of the concluded that the new enactment “alters the situation mental illness, or, after the death of the mentally ill before us so materially that it calls for a different result in person in that condition, and during the life of the other this case” (308 N.Y. at 223, 124 N.E.2d 290). The Gaines party to the marriage, by any relative of the mentally ill decision then proceeded to question the “doctrinal basis” person who has an interest to avoid the marriage” of Sleicher, in light of the enactment of Civil Practice Act (Domestic Relations Law § 140[c] ). § 1140–a. The Court explained that: The most readily apparent interest a relative of a deceased **468 “The fiction that annulment effaces a marriage spouse is likely to have in avoiding a marriage is ‘as if it had never been’ is sometimes given effect and preventing the living spouse from sharing in the deceased sometimes ignored, as the ‘purposes of justice’ are spouse’s estate.5 Yet, the Estates, Powers and Trusts Law deemed to require. The courts and the legislature have, provides that a **469 husband or wife is considered a accordingly, attached to annulled marriages, for certain “surviving spouse” with a right of election against the purposes, the same significance that a valid marriage deceased spouse’s estate under EPTL 5–1.1–A, would have, when a more desirable result is thereby achieved. Thus, although a distinction is sometimes made between void and voidable marriages, the “unless it is established satisfactorily to the court annulled marriage has been given sufficient vitality to having jurisdiction of the action or proceeding that: © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082

*115 (1) A final decree or judgment of divorce, of empowered to grant relief consistent with the equitable annulment or declaring the nullity of a marriage ... was principle that “[n]o one shall be permitted to profit by his in effect when the deceased spouse died [or that] (2) own fraud, or to take advantage of his own wrong, or to The marriage was void as incestuous under section five found any claim upon his own iniquity, or to acquire of the domestic relations law, bigamous under section property by his own crime” (Riggs v. Palmer, 115 N.Y. six thereof, or a prohibited remarriage under section 506, 511, 22 N.E. 188; see Matter of Covert, 97 N.Y.2d eight thereof [or that certain other circumstances, not 68, 74, 735 N.Y.S.2d 879, 761 N.E.2d 571; Matter of relevant in this case, existed]” (EPTL 5–1.2 [a] ). Lonergan, 63 N.Y.S.2d 307; see also Barker v. Kallash, This provision appears to render the right of family 63 N.Y.2d 19, 25, 479 N.Y.S.2d 201, 468 N.E.2d 39; members to obtain a post-death annulment largely Carr v. Hoy, 2 N.Y.2d 185, 187, 158 N.Y.S.2d 572, 139 illusory. This effect was illustrated in (Bennett v. Thomas, N.E.2d 531). Pursuant **470 to this doctrine, which has 38 A.D.2d 682, 327 N.Y.S.2d 139), where, although the been applied in both civil and criminal cases, the Appellate Division affirmed the denial of a motion to wrongdoer is deemed to have forfeited the benefit that dismiss a complaint seeking to annul the marriage of the would flow from his or her wrongdoing (see Giles v. plaintiffs’ deceased mother, the court cited EPTL 5–1.2(a) California, 554 U.S. 353, 128 S.Ct. 2678, 2683, 171 and pointed out that “the outcome of this postdeath L.Ed.2d 488 [discussing common-law doctrine of annulment action will not affect the defendant’s right of “forfeiture by wrongdoing,” under which a criminal election as a surviving spouse. His right to elect against defendant forfeits the right to confront witnesses by his wife’s estate became fixed and unalterable upon the engaging in conduct designed to prevent a witness from wife’s death” (38 A.D.2d at 682–683, 327 N.Y.S.2d 139). testifying]; Diaz v. United States, 223 U.S. 442, 458, 32 Notwithstanding this potentially incongruous result, the S.Ct. 250, 56 L.Ed. 500, quoting Falk v. United States, 15 language of the statute is inescapably plain. As applied in App DC 446, 460 [“ ‘The question is one of broad public cases involving post-death annulments, EPTL 5–1.2(a) policy.... Neither in criminal nor in civil cases will the law appears to be among those statutory provisions in which, allow a person to take advantage of his own wrong’ ”]; as the Court of Appeals discussed in Gaines v. Jacobsen, New York Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591, the Legislature has “attached to annulled marriages, for 600, 6 S.Ct. 877, 29 L.Ed. 997 [person who purchased life certain purposes, the same significance that a valid insurance policy “forfeited all rights under it when, to marriage would have” (308 N.Y. at 225, 124 N.E.2d 290). secure its immediate payment, he murdered the assured”] [quoted in Riggs v. Palmer, 115 N.Y. at 512]; People v. [2] In this case, the marriage was not declared a nullity Sanchez, 65 N.Y.2d 436, 492 N.Y.S.2d 577, 482 N.E.2d until this Court issued its decision and order in January 56 [criminal defendant who deliberately leaves courtroom 2007, more than five years after Howard’s death. Thus, during trial forfeits the right to be present at trial]; Matter under EPTL 5–1.2, Nidia technically had a legal right to of Coty, Inc. v. Anchor Const. Inc., 2003 N.Y. Slip Op an elective share as a surviving spouse. 50013[U], *11 [Sup. Ct. New York County 2003], affd. 7 A.D.3d 438, 776 N.Y.S.2d 795 [“for example, if one party [3] That determination, however, does not end this Court’s destroys evidence, wrongfully resists disclosure, inquiry. The literal terms of a statute should not be rigidly intentionally absents itself, or prevents a witness from applied if to do so “ ‘would be to ordain the statute as an testifying, it cannot profit from its own misconduct”] ). instrument for the protection of fraud’ ” (Citizens Util. Co. v. American Locomotive Co., 11 N.Y.2d 409, 420, This “fundamental equitable principle” (Simon & 230 N.Y.S.2d 194, 184 N.E.2d 171, quoting Southern Schuster, Inc. v. Members of N.Y. State Crime Victims Cal. Enterprises v. D.N. & E. Walter & Co., 78 Bd., 502 U.S. 105, 119, 112 S.Ct. 501, 116 L.Ed.2d 476, Cal.App.2d 750, 752, 178 P.2d 785, 786). Mechanically quoting Matter of Children of Bedford v. Petromelis, 77 applying EPTL 5–1.2 to honor the right of election of a N.Y.2d 713, 727, 570 N.Y.S.2d 453, 573 N.E.2d 541) has surviving spouse whose very status as a spouse was been invoked to deny an individual who murders a family procured through overreaching or undue influence would member the right to inherit from the victim of the murder “seemingly invite[ ] a plethora of surreptitious ‘deathbed (see Riggs v. Palmer, 115 N.Y. at 513, 22 N.E. 188), the marriages’ as a means of obtaining one third of a *116 right to succeed to the survivorship interest he would have decedent’s estate immune from challenge” (Matter of otherwise had as a joint tenant of the victim (see Matter of Berk, 20 Misc.3d 691, 697, 864 N.Y.S.2d 710). Covert, *117 97 N.Y.2d at 76, 735 N.Y.S.2d 879, 761 N.E.2d 571), and the right to an elective share of the [4] The Supreme Court, being a court of equity as well as victim’s estate (see Matter of Lonergan, 63 N.Y.S.2d 307, law (see N.Y. Const art VI, § 7[a]; McCain v. Koch, 70 308). The rule, however, is not limited to murderers, and N.Y.2d 109, 116, 517 N.Y.S.2d 918, 511 N.E.2d 62), was has been employed under a variety of circumstances, for

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082 example, to prevent a party from enforcing an illegal of a person he or she knows to be mentally incapacitated contract (see Stone v. Freeman, 298 N.Y. 268, 82 N.E.2d (see Riggs v. Palmer, 115 N.Y. at 512, 22 N.E. 188; see 571), to preclude recovery in tort by a plaintiff whose generally Matter of Walther, 6 N.Y.2d 49, 188 N.Y.S.2d injuries directly resulted from his or her serious violation 168, 159 N.E.2d 665; Matter of Burke, 82 A.D.2d 260, of the law (see Manning v. Brown, 91 N.Y.2d 116, 667 441 N.Y.S.2d 542). By her conduct, Nidia has forfeited N.Y.S.2d 336, 689 N.E.2d 1382), to deny a wife’s request any rights that would flow from the marital relationship, to redate a judgment of divorce terminating her husband’s including the statutory right she would otherwise have to prior marriage where the wife knew that her own an elective share of Howard’s estate. marriage to the husband was bigamous (see Martin v. Martin, 205 A.D.2d 506, 614 N.Y.S.2d 281), and to find We recognize that Nidia’s conduct was not as egregious that a landowner’s commencement of construction of a as, for example, the conduct of the defendant in Riggs v. shopping center did not create a vested right to the Palmer (115 N.Y. 506, 22 N.E. 188), who, having been issuance of building permits, where the landowner named in his grandfather’s will, murdered his grandfather knowingly performed the work in violation of a restrictive in an effort to obtain “speedy enjoyment” of his covenant (see Matter of G.M. Land Corp. v. Foley, 20 inheritance and to prevent the grandfather from excluding A.D.2d 645, 246 N.Y.S.2d 338). him from the will (id. at 509, 22 N.E. 188; see also Matter of Lonergan, 63 N.Y.S.2d 307 [surviving spouse who had In determining whether Nidia engaged in wrongdoing murdered his wife had no right to spousal election against from which she now seeks to profit by taking a share of her estate] ). Yet, while the wrongdoers in Riggs and Howard’s estate, we begin with the decision on the prior Lonergan were already in a position to benefit from their appeal in this matter, in which this Court determined that victims’ estates, in the present case, it was the wrongful Howard lacked the mental capacity to enter into the conduct itself that put Nidia in a position to obtain marriage. The record that was before the Supreme Court benefits that were available by virtue of being Howard’s in this matter establishes that Nidia was aware of this lack spouse. Thus, while the measures taken by Nidia were of capacity. As Nidia well knew, Howard’s dementia had certainly not as extreme as those taken in Riggs and advanced to the point that he often had difficulty Lonergan, the causal link between the wrongdoing and recognizing family members, had **471 lost the ability to the benefits she sought was actually more direct in this understand his legal and financial affairs or even to attend case (cf. McConnell v. Commonwealth Pictures Corp., 7 to his own basic hygiene, and could not be left alone for N.Y.2d 465, 471, 199 N.Y.S.2d 483, 166 N.E.2d 494 [for any period of time. Nidia had also been informed that, due recovery to be denied on the basis of wrongdoing, “[t]here to the progression of his prostate cancer, Howard was not must at least be a direct connection between the illegal expected to live much longer. With knowledge of these transaction and the obligation sued upon”] ). Moreover, facts, Nidia waited until Nancy, Howard’s primary the facts that Nidia had known Howard for 25 years, had a caretaker, left for a vacation, and then married Howard, close relationship with him, and had been legitimately without informing Nancy or any other member of named as one of the beneficiaries of his retirement Howard’s family until after the fact. Nidia not only account do not diminish Nidia’s culpability. If anything, quickly arranged to have her name added to Howard’s those facts—which Nidia has in common with a large bank account, but also secretly made herself the sole percentage of perpetrators of elder abuse (see supra beneficiary on Howard’s retirement account. Nidia then footnote 1)—indicate that Nidia was in a position of trust, attempted to cover up the latter fact by falsely stating in which she abused, and that she could not plausibly deny two affidavits that Howard made her the sole beneficiary awareness of Howard’s mental incapacity. without her knowledge or assistance, when, in fact, she herself had filled out the change-of-beneficiary form. **472 Thus, Nidia wrongfully altered Howard’s testamentary plan in her favor, just as surely as if she had [5] Taken together, the foregoing facts provide ample exploited his incapacity to induce him to add her to his support for an inference that Nidia was aware of will and bequeath her one third *119 of his estate. Under Howard’s lack of capacity to consent to the marriage, and such circumstances, equity will intervene to prevent the took unfair advantage of his *118 condition for her own unjust enrichment of the wrongdoer. pecuniary gain, at the expense of Howard’s intended heirs. Thus, Nidia procured the marriage itself through We find this result to be compelled not only by the need overreaching and undue influence. Nidia should not be to protect vulnerable incapacitated individuals and their permitted to benefit from that conduct any more than rightful heirs from overreaching and undue influence, but should a person who engages in overreaching and undue to protect the integrity of the courts themselves. It is “an influence by having himself or herself named in the will old, old principle” that a court, “even in the absence of

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082 express statutory warrant,” must not “ ‘allow itself to be of fraud, if it appears that, at any time before the made the instrument of wrong, no less on account of its commencement thereof, the parties voluntarily cohabited detestation of every thing conducive to wrong than on as husband and wife, with a full knowledge of the facts account of that regard which it should entertain for its constituting the fraud”]; Domestic Relations Law § 140 own character and dignity’ ” (Matter of Hogan v. [c] [action to annul marriage on mental **473 illness Supreme Ct. of State of N.Y., 295 N.Y. 92, 96, 65 N.E.2d grounds may be “ maintained by the mentally ill person at 181, quoting Baldwin v. City of New York, 42 Barb 549, any time after restoration to a sound mind; but in that 550, affd 45 Barb 359; cf. Carr v. Hoy, 2 N.Y.2d at 187, case, the marriage should not be annulled if it appears that 158 N.Y.S.2d 572, 139 N.E.2d 531, quoting Stone v. the parties freely cohabited as husband and wife after the Freeman, 298 N.Y. at 271, 82 N.E.2d 571 [“a party to an mentally ill person was restored to a sound mind”]; illegal contract cannot ask a court of law to help him carry Aghnides v. Aghnides, 308 N.Y. 530, 533, 127 N.E.2d out his illegal object” because “ ‘no court should be 323; Avnery v. Avnery, 50 A.D.2d 806, 808, 375 N.Y.S.2d required to serve as paymaster of the wages of crime’ ”] ). 888). In such cases, the surviving spouse may be deemed In this case, the record reveals that Nidia secretly entered worthy of an elective share despite his or her initial into a marriage with a person whom she knew to be wrongdoing. incapable of consenting to marriage, with the intent to collect, as a surviving spouse, a portion of his estate. A In this case, however, the marriage was wrongfully crucial step in the completion of that plan was Nidia’s procured by Nidia, and since, as Nidia had every reason to assertion of a right of election in the Surrogate’s Court. know, Howard’s mental condition would become Of course, the powers of the judiciary are not unlimited, progressively worse until his death, this was not a and courts are not capable of righting or preventing every situation in which the marriage, though initially wrong. The courts, however, can, and must, prevent nonconsensual, could be ratified later by the themselves and their processes from being affirmatively nonconsenting spouse. Indeed, Howard’s condition was employed in the execution of a wrongful scheme. such that he not only lacked any awareness that the marriage had occurred, but vehemently denied that it had The equitable doctrine pursuant to which we find that when he was confronted with it. Nidia’s conduct in this Nidia has forfeited her right of election does not displace case—marrying Howard so close to the end of his life, legislative authority, but complements it. Our decision with knowledge that Howard was mentally incapacitated does not reflect an effort to avoid a result intended by the and would never regain his mental capacity, and Legislature. Rather, for the following reasons, it is clear to concealing the marriage from Howard’s family—was us that the Legislature did not contemplate the unmistakably designed to preserve the nonconsensual circumstances presented by this case when it enacted marriage until Howard’s death, thus ensuring that Nidia EPTL 5–1.2. would be regarded by the law as a surviving spouse.

For purposes of determining a surviving spouse’s right to When it enacted EPTL 5–1.2 in 1966, the Legislature was an elective share, the Legislature has, in general, chosen focused on preventing an individual from disinheriting his to treat marriages annulled after the death of one of the or her spouse (see Third Report of the Temporary State spouses as being valid until the annulment, rather than Commission on the Modernization, Revision and void ab initio. Thus, where there has been no pre-death Simplification of the Law of Estates to The Governor and annulment, EPTL 5–1.2 does not, by its terms, disqualify The Legislature, Legis Doc No. 19, at 23 [1964]; Jessica the surviving spouse from asserting a right of election Baquet, Notes, *121 Aiding Avarice: The Inequitable where the deceased spouse’s consent was lacking due to, Results of Limited Grounds for Spousal Disqualification e.g., fraud or want of understanding. In most cases, the Under EPTL § 5–1.2, 23 St. John’s J. Legal Comment. statute will produce an acceptable result. In some *120 843, 847–857 [2008] ). We are confident that the cases where the deceased spouse lacked the capacity to Legislature did not intend the statute to provide refuge for marry, the surviving spouse may have been unaware of a person seeking to profit by means of a nonconsensual the incapacity, and thus innocent of any wrongdoing, and marriage. And our holding that the statutory right of it is, therefore, reasonable to permit the surviving spouse election may be forfeited is limited to just such a to elect against the decedent’s estate. In cases of fraud or situation, that is, where an individual, knowing that a temporary incapacity, even where the surviving spouse mentally incapacitated person is incapable of consenting has engaged in wrongdoing, it is possible for the deceased to a marriage, deliberately takes unfair advantage of the spouse to ratify, or condone, the marriage at any time incapacity by marrying that person for the purpose of before his or her death (see Domestic Relations Law § obtaining pecuniary benefits that become available by 140[e] [“a marriage shall not be annulled ... on the ground virtue of being that person’s spouse, at the expense of that

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082 person’s intended beneficiaries. a vested property interest”] ). Accordingly, rather than awarding the entire proceeds of the TRS account to Keith, Although we exercise our equitable power to award Peter, and Christopher, the parties should be restored to appropriate relief in this case, we nonetheless call upon the status quo ante by means of a direction to the TRS to the Legislature to re-examine the relevant provisions of restore the designation of the beneficiaries of the account the EPTL and the Domestic Relations Law and to to that which existed prior to the change made thereto in consider whether it might be appropriate to make 2001. We note that any funds paid to or held by Nidia are revisions that would prevent unscrupulous individuals subject to any valid claims by, and any enforcement from wielding the law as a tool to exploit the elderly and proceedings brought by, Howard’s estate. infirm and unjustly enrich themselves at the expense of such victims and their rightful heirs. Nidia’s remaining contentions are without merit.

For the foregoing reasons, we conclude that the Supreme Accordingly, the order dated January 31, 2008, is Court, in its order dated June 21, 2007, properly directed modified, on the law, by deleting the provision thereof the entry of a judgment declaring that Nidia “shall have denying that branch of Nidia’s motion which was to no legal rights and can claim no legal interest as a spouse vacate the provision of the order dated June 21, 2007, of [Howard]” (see Matter of Kaminester v. Foldes, 51 directing the New York City Teachers’ Retirement A.D.3d 528, 529, 859 N.Y.S.2d 412, quoting People ex System to “recognize and make Keith Howard Thomas, rel. Doe v. Beaudoin, 102 A.D.2d 359, 363, 478 N.Y.S.2d Peter Thomas, and Christopher L. Campbell the sole 84 [“Supreme Court and Surrogate’s Court have beneficiaries under Howard N. Thomas’ TRS Pension concurrent jurisdiction in matters involving a decedent’s Number R–7817910 (or any other account of Howard N. estate,” and “a Supreme Court Justice is vested with Thomas) with each beneficiary receiving a ⅓ share,” and inherent plenary power (N.Y. Const, art VI, § 7) to substituting therefor a provision granting that branch of fashion any remedy necessary for the proper the motion and directing the New York City Teachers’ administration of justice”]; **474 Gaentner v. Benkovich, Retirement System to restore the designation of the 18 A.D.3d 424, 427–428, 795 N.Y.S.2d 246). Therefore, beneficiaries of Howard N. Thomas’s Teachers’ in the order appealed from, the Supreme Court properly Retirement System of the City of New York account to denied that branch of Nidia’s motion which was to that which existed prior to the change made thereto in modify or vacate that provision of the order dated June 2001. We otherwise affirm the order. 21, 2007. ORDERED that the order dated January 31, 2008, is The Supreme Court also properly denied that branch of modified, on the law, by deleting the provision thereof Nidia’s motion which was to modify or vacate the denying that branch of the motion of the defendant Nidia provision of the order dated June 21, 2007, which directed Colon Thomas which was to vacate the provision of the that Howard’s estate was to be “given ownership of all order dated June 21, 2007, directing the New York City property in the name of Howard N. Thomas as of Teachers’ Retirement System to “recognize and make October 1, 2000,” and that the estate was to distribute Keith Howard Thomas, Peter Thomas, and Christopher those funds to Keith, Peter, and Christopher in one-third L. Campbell the sole beneficiaries under Howard N. shares. In light of Nidia’s lack of any legal right or Thomas’ TRS Pension Number R–7817910 (or any other interest as a spouse of Howard, she does not have account *123 of Howard N. Thomas) with each standing to challenge the Supreme Court’s directive beneficiary receiving a ⅓ share,” and substituting therefor regarding the distribution of Howard’s estate. a provision granting that branch of the motion and directing the New York City Teachers’ Retirement *122 There is one aspect of the order dated June 21, 2007, System to restore the designation of the **475 that requires modification. That order directed the TRS to beneficiaries of Howard N. Thomas’s Teachers’ make Keith, Peter, and Christopher the only beneficiaries Retirement System of the City of New York account to of Howard’s retirement account. Prior to Nidia’s marriage that which existed prior to the change made thereto in to Howard, however, Nidia had been one of the 2001; as so modified, the order is affirmed, with costs to beneficiaries of that account. Thus, the share in the the respondent Christopher Campbell. account that Nidia already possessed was not a product of her wrongful conduct (see Matter of Covert, 97 N.Y.2d at 74, 735 N.Y.S.2d 879, 761 N.E.2d 571 [“we have never applied the doctrine [that one shall not profit from his or her own wrongdoing] to cause a wrongdoer’s forfeiture of MILLER, CHAMBERS and ROMAN, JJ., concur.

Campbell v. Thomas, 73 A.D.3d 103 (2010) 897 N.Y.S.2d 460, 2010 N.Y. Slip Op. 02082

All Citations 02082

73 A.D.3d 103, 897 N.Y.S.2d 460, 2010 N.Y. Slip Op.

Footnotes

1 The results of one study indicate that in approximately 65% of substantiated cases of elder abuse, the alleged offender was an “adult child,” “other family member,” or “spouse/intimate partner” of the victim (National Center on Elder Abuse, The 2004 Survey of State Adult Protective Services: Abuse of Adults 60 Years of Age and Older, at 20 [Feb.2006], http://www.ncea.aoa.gov/Main_Site/pdf/2–14–06%20FINAL%2060+REPORT.pdf).

2 See e.g. L 2004, ch 642 (adding Chapter 35–A [Elder Law] to Consolidated Laws of New York, including Elder Law § 219, which creates Elderly Abuse Education and Outreach Program); L 2008, ch 184 (enacting Executive Law § 214–c, which requires Division of State Police to implement policies and procedures to be followed by officers who encounter elder abuse, including financial exploitation); see generally Jessica Baquet, Notes, Aiding Avarice: The Inequitable Results of Limited Grounds for Spousal Disqualification Under EPTL § 5–1.2, 23 St. John’s J. Legal Comment. 843 (2008).

3 Nidia previously had been one of five beneficiaries of the TRS account, along with Christopher, Keith, Nancy, and Nancy’s son, Peter Thomas.

4 Nancy died during the litigation, and the administrator of her estate, her son Peter, was substituted for her.

5 See Matter of Haney, 14 A.D.2d 121, 125 (Civil Practice Act § 1139, the predecessor of Domestic Relations Law § 140[e], provided for post-death cause of action for annulment where consent of deceased spouse was obtained by fraud, but not where consent of surviving spouse was obtained by fraud, because “[i]f the perpetrator of the fraud died first, there would be no opportunity for him to share in the estate of the person whom he had fraudulently induced to marry him”); Campbell v. Campbell, 239 App.Div. 682, 683, 268 N.Y.S. 789, affd. 264 N.Y. 616, 191 N.E. 592 (“It was the apparent purpose of the Legislature not only to protect the defrauded party by giving a right to annul, but also to protect any property rights of his or her relatives which may have been affected. If this were not so, it is difficult to comprehend why a relative of a defrauded party after his or her death, and ‘during the life-time of the other party,’ is permitted to bring an action for an annulment”).

In re Berk, 71 A.D.3d 883 (2010) 897 N.Y.S.2d 475, 2010 N.Y. Slip Op. 02139

beneficiaries, precluded summary judgment on wife’s petition asking Surrogate Court to KeyCite Yellow Flag - Negative Treatment determine validity of her right to take elective Distinguished by K.A.L. v. R.P., N.Y.Sup., March 19, 2012 share of decedent’s estate. McKinney’s EPTL 71 A.D.3d 883 5–1.1–A(a). Supreme Court, Appellate Division, Second Department, New York. 3 Cases that cite this headnote In the Matter of Irving BERK, deceased. Hua Wang, a/k/a Judy Wang, respondent-appellant; Joel Berk, et al., appellants-respondents.

March 16, 2010. Attorneys and Law Firms

**475 Jaspan Schlesinger LLP, Garden City, N.Y. (John G. Farinacci and Jessica M. Baquet of counsel), for Synopsis appellants-respondents. Background: In probate proceeding, wife filed petition for a decree determining that she was entitled to take her Bressler, Amery & Ross, P.C., New York, N.Y. (Jordan elective share against her husband’s estate, and that her S. Weitberg, Kenneth M. Moltner, and David I. Hantman notice of election was properly served, filed, and of counsel), for respondent-appellant. recorded. The Surrogate’s Court, Kings County, Johnson, S., 20 Misc.3d 691, 864 N.Y.S.2d 710, granted wife JOSEPH COVELLO, J.P., FRED T. SANTUCCI, summary judgment, and declared that election was valid. CHERYL E. CHAMBERS, and PLUMMER E. LOTT, Co-executors of decedent’s estate appealed. JJ.

Opinion

Holding: The Supreme Court, Appellate Division, held *883 In a probate proceeding in which Hua Wang, a/k/a that triable issue of fact precluded summary judgment on Judy Wang, petitioned pursuant to SCPA 1421, inter alia, wife’s petition asking Surrogate Court to determine to determine the validity and effect of an election validity of her right to take elective share of decedent’s pursuant to EPTL 5–1.1–A asserted by her against the estate. estate of the decedent Irving Berk, the co-executors of the decedent’s estate, Joel Berk and Harvey Berk, appeal, as limited by their brief, from (1) so much of an order of the Reversed. Surrogate’s Court, Kings County (Johnson, S.), dated July 3, 2008, as granted the petitioner’s motion for summary judgment on the petition and **476 directed dismissal of their counterclaims, without prejudice, and (2) so much of a decree of the same court dated August 5, 2008, as, upon West Headnotes (1) the order, in effect, is in favor of the petitioner and against them granting the petition, declaring that the election was valid, and dismissing their counterclaims, without [1] Judgment prejudice, and the petitioner cross-appeals from (1) so Particular Cases much of the order as, upon directing the dismissal of the counterclaims asserted by Joel Berk and Harvey Berk, did In probate proceeding, triable issue of fact as to so “without prejudice,” and (2) so much of the decree, as, whether petitioner, the decedent’s wife, forfeited upon the order, and upon dismissing the counterclaims, the statutory right of election asserted by her did so “without prejudice.” against decedent’s estate, by marrying purportedly mentally incapacitated man for ORDERED that the cross appeals are dismissed, as the purpose of obtaining pecuniary benefits that petitioner is not aggrieved by the portions of the order and would become available by virtue of being that the decree cross-appealed from (see CPLR 5511); and it is person’s spouse at expense of person’s intended © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

In re Berk, 71 A.D.3d 883 (2010) 897 N.Y.S.2d 475, 2010 N.Y. Slip Op. 02139 further, contemplated guardianship proceeding. That physician opined that the decedent’s mental state was such that the ORDERED that the appeal from the order is dismissed; decedent was “incapable of ... enter[ing] into binding and it is further, contracts.” In addition, the decedent’s long-time primary-care physician, who examined the decedent on ORDERED that the decree is reversed insofar as appealed several occasions around this time, opined that the from, on the law, the petitioner’s motion for summary decedent’s mental state was such that the decedent was judgment on the petition is denied, the counterclaims are “incapable of properly managing ... his ... social ... reinstated, and the order is modified accordingly; and it is affairs.” further, On June 17, 2005, the petitioner and the decedent, then 47 ORDERED that one bill of costs is awarded to Joel Berk years old and 99 years **477 old, respectively, were and Harvey Berk, payable by the petitioner personally. married in a ceremony at the New York City Clerk’s Office. According to one of the decedent’s associates, The appeal from the intermediate order must be dismissed who saw the petitioner and the decedent that day at the because the right of direct appeal therefrom terminated School, the decedent, who had been dressed up in a suit with the entry of the decree (see Matter of Aho, 39 N.Y.2d and tie, did not appear to be “lucid or aware of his 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues circumstances.” raised on the appeal from the order are *884 brought up for review and have been considered on the appeal from The petitioner and the decedent never told the decedent’s the decree (see CPLR 5501[a][1] ). sons, friends, or associates about the wedding. The petitioner *885 and the decedent also never said or did In 1982 Irving Berk (hereinafter the decedent), an anything that would have given the decedent’s sons, extremely successful businessman who founded the Berk friends, or associates any indication that the petitioner and Trade and Business School (hereinafter the School), the decedent had been married. For example, according to executed a will. In his will, the decedent named his two one of the decedent’s friends, who saw the petitioner and sons, Joel Berk and Harvey Berk, as the co-executors of the decedent together almost every day, the petitioner and his estate. the decedent, who never wore a wedding band, never displayed any affection towards each other. Over time, the decedent’s health began to fail. His physical condition deteriorated to the point that he On June 16, 2006, the decedent died. The day before the required a wheelchair to ambulate. He also suffered from decedent’s funeral, the petitioner, while riding in a car memory loss, and often became confused. with the petitioner’s sons to the funeral home, finally informed them that she and the decedent had been In 1997 the petitioner, a then–40–year–old woman who married. immigrated to this country from China in 1996, was hired as the decedent’s live-in caretaker. The decedent, 91 years When the decedent died, he left an estate valued in excess old at the time, became totally dependent on the of five million dollars. The sole beneficiaries under his petitioner, who was constantly with him. will were his sons and four of his grandchildren. The decedent never amended his will so as to make the According to an associate of the decedent’s, who was petitioner a beneficiary. frequently with the petitioner and the decedent, on numerous occasions the petitioner shoved and screamed On or about December 29, 2006, after the decedent’s will at the decedent, causing him to become “tearful.” In was filed for probate, the petitioner petitioned the addition, according to a friend of the decedent’s, the Surrogate’s Court to determine the validity of her right to decedent told him, in confidence, that he was “afraid” of take an elective share of the decedent’s estate. In their the petitioner, as she would hit him, scratch his face, and answer, the decedent’s sons asserted certain scream at him. counterclaims against the petitioner. The petitioner moved for summary judgment on the petition. In an order dated In April 2005 the decedent, whose mental faculties had July 3, 2008, the Surrogate’s Court, upon finding, inter steadily declined in the years immediately preceding that alia, that no issues of fact existed regarding the time, and who would occasionally be unable to recognize petitioner’s status as the decedent’s surviving spouse, his sons and friends, was diagnosed with dementia by a granted the petitioner’s motion. Specifically, the physician who examined him in connection with a Surrogate’s Court determined that the petitioner

In re Berk, 71 A.D.3d 883 (2010) 897 N.Y.S.2d 475, 2010 N.Y. Slip Op. 02139 demonstrated her entitlement to judgment as a matter of intervene to prevent the petitioner from becoming law by establishing that she was the decedent’s surviving unjustly enriched from her wrongdoing, as a *886 court spouse at the time of the decedent’s death (see EPTL cannot “allow itself to be made the instrument of wrong” 5–1.1–A[a] ). (id. at 119, 897 N.Y.S.2d 460, quoting Baldwin v. City of New York, 42 Barb. 549, 550, affd. 45 Barb. 359). However, a triable issue of fact exists as to whether the Accordingly, the petitioner is not entitled to summary petitioner forfeited the statutory right of election (see judgment on the petition. Campbell v. Thomas, 73 A.D.3d 103, 897 N.Y.S.2d 460 [decided herewith] ). In opposing the petitioner’s motion Furthermore, under the circumstances, the Surrogate’s for summary judgment on the petition, the decedent’s Court should not have dismissed the counterclaims (cf. sons tendered evidence from which a trier of fact could Skyline Enters. of N.Y. Corp. v. Amuram Realty Co., 288 properly determine that the petitioner, “knowing that a A.D.2d 292, 293, 732 N.Y.S.2d 881). mentally incapacitated person [was] incapable of consenting to a marriage, deliberately [took] unfair advantage of the incapacity by marrying that person for the purpose of obtaining pecuniary benefits that become All Citations available by virtue of being that person’s spouse, at the expense of that person’s intended beneficiaries” 71 A.D.3d 883, 897 N.Y.S.2d 475, 2010 N.Y. Slip Op. (Campbell v. Thomas, 73 A.D.3d 103, 121, 897 N.Y.S.2d 02139 460). Should the trier of fact so determine, equity will End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U)

New York City Human Resources Administration, by Pamela Perel, Esq., New York, for the Petitioner, Movant. 39 Misc.3d 1242(A) Unreported Disposition Mental Hygiene Legal Service, by Rebecca Kittrell, Esq., (The decision of the Court is referenced in a table in Brooklyn, Eric Nelson, Esq., Staten Island, Counsel for the New York Supplement.) the AIP. Supreme Court, Kings County, New York. Tanya Hobson Williams, Esq., Floral Park, Counsel for In the Matter of the Application of Robert DOAR the Cross–Movant Vanessa Taylor Spier. as the Commissioner of Social Services of the City of New York, Petitioner, Opinion For the Appointment of a Guardian for the Personal Needs and Property Management of L.S. BETSY BARROS, J. an Alleged Incapacitated Person.

No. 100140–12. *1 Papers considered in review of the motion: | June 21, 2013.

Attorneys and Law Firms

Papers Numbered

Notice of Motion, OSC, Petitions, affs. & exhibits 1, 2, 3.

CrossPetition, affs. & exhibits 4.

relationship and a false sense of security by a predator. This guardianship case highlights the predation and exploitation that face the aged and incapacitated. In the case at bar, the predator, through seduction and feigned concern for him gained the incapacitated person’s total GENESIS OF THE CASE co-operation in her scheme to convert of all his assets to Petitioner, Adult Protective Services(“APS” or herself. His doctors at the VA hospital, suspicious of his Petitioner”), by order to show cause, by petition, verified recent marriage and aware of his dementia failed to report on June 11, 2012, and by supporting Doctor’s Affirmation their concerns, his banking institutions failed to act in a dated May 9, 2012 seeks the appointment of a guardian timely manner so as to thwart her scheme, and his for the respondent, an 83 year-old alleged incapacitated appointed agent failed to intercede effectively. Law person (“AIP”). APS’s investigation and filing of the enforcement has done nothing to protect the incapacitated matter was prompted by reports of financial exploitation person or to restore his funds. The only shelter afforded of the AIP by Vanessa Taylor Spier (“Vanessa TS” or this victim came in the context of this civil proceeding, an “Cross–Petitioner”), the AIP’s 46 year-old wife, who had intervention that unfortunately came much too late. been his former home aide and whom he married one year

ago.1 Vanessa TS cross-petitioned, requesting dismissal of Dementia robs its victims of their reason and judgment bit said petition, or in the alternative to be appointed the by bit. This case is but one version of the all-too familiar AIP’s personal and property guardian. tale of an elderly individual, afflicted with dementia who becomes so impaired that he is lulled into a trusting

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U)

PENDENTE LITE ORDERS NECESSARY TO $350,000.00 held in a Morgan Stanley Account.6 (Hr’g PROTECT THE AIP Tr., p. 151, April 8, 2013). During the pendency of the case, this court issued several pendente lite orders designed to ensure the AIP’s physical Employed by the local hospital, Long Island College safety, prevent further dissipation of his assets, allow a Hospital, and now living in Pennsylvania, Brian met the thorough investigation of the matter, and pay for the AIP when Brian resided in the AIP’s neighborhood. Brian AIP’s home care, to wit: 1. On June 22, 2012, an order testified that they became friends in part because they restraining the Cross–Petitioner from accessing any funds shared a common history. Both of them had grown up belonging to the AIP or in which the AIP had an equitable orphaned. As he became increasingly physically and interest; 2. On August 17, 2012, an order appointing a cognitively compromised, the AIP paid Brian nominal geriatric care manager because the AIP was neglected and sums to do some light cleaning, to accompany him to to ascertain if he could be safely maintained in his medical appointments, and to pay bills. As part of this four-story walk up; 3. On September 21, 2012, an order informal arrangement, Brian, the younger man, looked appointing a Temporary Guardian to protect the AIP’s after the AIP and his affairs, which included checking on person and property since Vanessa T.S. was not the AIP at his residence. He was available to the AIP adequately providing for him and to contract for home during various crises. Specifically, Brian recalled a time care;2 4. On September 21, 2012, an order that Vanessa when he found the AIP stuck in his bathtub, neck deep in TS admit the Court Evaluator into the AIP’s apartment3 so water after having suffered a fall and another time when that the investigation and report could be completed; 5. the AIP wandered disoriented into the local hospital clad On September 25, 2012, an order restraining Morgan in his underwear.(Hr’g Tr., pp122–124, April 8, 2013). Stanley from allowing Vanessa TS to withdraw any After the AIP developed problems ambulating Brian funds;. 6. On November 30, 2012, an order for emergency assisted him with shopping. In time, the AIP gradually spousal support against Cross–Petitioner pursuant to began requiring greater assistance with his activities of Family Court Act § 442.4 daily living (“ADLS”).

Apart from the compensation received for the services rendered, Brian acknowledged having received a one time loan of $700.00, which was repaid, and some small gifts THE HEARING over the years.(Hr’g Tr., pp. 202–203, April 8, 2013) Brian and the AIP used the AIP’s ATM card to make *2 The hearing was conducted over two days and withdrawals for some of the AIP’s monthly expenses. testimony was adduced from Fred Moskowitz, the court Around 2006 Brain became the “In Trust For” designee appointed geriatric care manager, Eric Nelson Esq., the on the AIP’s Morgan Stanley account. And, prior to a Court Evaluator, Dr. Ralph Speken, a psychiatrist scheduled hospitalization, the AIP designated Brian as his employed by HRA, Brian McKenna, the AIP’s friend attorney-in-fact. (Hr’g Tr., pp. 116–118, April 8, 2013) (“Brian”), and Vanessa TS. The AIP was present The AIP also designated Brian as his health care proxy. throughout the proceedings, but did not testify. Extensive (Hr’g Tr., pp. 120–121,191, April 8, 2013) Brian used the medical and financial records dating back several years Power of Attorney (POA) on a few limited occasions. The were submitted into evidence. only large withdrawal Brian made as POA was sometime after the AIP was discharged from his longest hospital stay. At the AIP’s behest, Brian gave Jimmy Wilson, the Cross–Petitioner’s boyfriend, $1,000.00 in cash, TESTIMONY OF BRIAN MCKENNA presumably to pay Jimmy and Vanessa’s back rent. Mr. Brian McKenna, the AIP’s friend of twenty years and Suspicious of said transaction, Brian obtained a receipt his former attorney-in-fact, testified about the AIP’s from Jimmy .(Hr’g Tr., pp. 130, 176–177, April 8, 2013) character, finances, and post-retirement history.5 After The only other occasion Brian used the POA was to retirement, the AIP maintained an active social life, interface with the AIP’s banking institutions regarding a according to Brian and had a circle of neighborhood flurry of large withdrawals brought to his attention by friends. He was bright, generous, and gregarious. The AIP Chase.(Hr’g Tr., p. 151, April 8, 2013) Brian brought the was fastidious about his appearance and the maintenance AIP to the bank where the two conferred with bank of his apartment.(Hr’g Tr. pp. 125,143–144, April 8, employees. When the bank employees and Brian 2013) He managed his own affairs, scheduled and questioned the AIP about the troubling withdrawals, he maintained regular doctor and dental appointments, and expressed no knowledge of the transactions. (Hr’g Tr., pp. had saved sufficient funds for his retirement. (Hr’g Tr., p. 152–153, April 8, 2013) Apparently, the AIP was unable 151, April 8, 2013). In 2008 the AIP’s had some

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U) to comprehend that he had most likely been the victim of stated that the AIP, independently of her, made all his financial exploitation or fraud. (Hr’g Tr., pp. 152–153, own financial decisions. She explained that he had moved April 8, 2013) his investment accounts into savings accounts so that he could do as he pleased with his money whenever he *3 Approximately seven years ago, the AIP began wanted to. (Hr’g Tr., pp. 431–432, April 12, 2013) experiencing serious health problems which resulted in Admittedly present during the banking withdrawals, the three hospitalizations. The most serious one requiring a Cross–Petitioner gave no acceptable explanation for why right hip replacement, resulted in an eleven month stay in she and the AIP drained his accounts, nor of how the the VA hospital and a rehabilitation center.7 money was spent. (Hr’g Tr., pp. 408–411, April 12, 2013)) She also failed to offer a plan of how she would It was during this long term stay at the VA hospital that provide for her husband now that he was destitute.11 the AIP was befriended by the Cross–Petitioner and her Instead, she focused on the intrusions this proceeding boyfriend, Jimmy Wilson, also a long term patient at the caused in her life, the inadequacy of AIP’s studio rehabilitation center. Upon his discharge in 2008, the AIP apartment, the expense of his home care and whether was in a weakened state and became increasingly there were sufficient funds to purchase an apartment. cognitively impaired,8 and Vanessa TS became his (Hr’g Tr., pp. 439, 447–449, April 12, 2013) She also part-time home attendant. Thereafter, she informed Brian admitted that she had not filed or given any thought to that since she would be attending to the AIP’s finances straightening out the AIP’s tax filings, a responsibility and other needs, his services were no longer needed. which, she acknowledged, Brian had executed. (Hr’g Tr., Vanessa TS changed the AIP’s phone number, and to pp. 433, April 12, 2013) avoid her increasing hostility, Brian limited his visits with the AIP to mornings, a time preceding Vanessa TS’ arrival at the AIP’s home. (Hr’g Tr., pp. 167, 171–172, 174, April 8, 2013) TESTIMONY OF DR. RALPH SPEKEN *4 Dr. Speken, an expert in adult psychiatry, employed by In November 2009 Vanessa TS became the POD designee APS, rendered compelling testimony regarding the AIP’s on the AIP’s accounts. In October 2010 unbeknownst to mental state, his cognitive decline and the impact of the Brian, the AIP revoked Brian’s POA, and Vanessa TS AIP’s illness upon his ability to function. In February became the AIP’s POA (Hr’g Tr., pp. 146, April 8, 2013) 2012, Dr. Speken, at APS’ direction, conducted an And, finally, in April 2011, they wed. Neither the AIP nor assessment of the AIP’s mental capacity. His findings Vanessa TS ever told Brian that they had married.9 (Hr’g were based on an extensive interview of the AIP and a Tr., pp. 173, April 8, 2013) review of the AIP’s VA medical records dating back several years.(Hr’g Tr. pp. 227, April 12, 2013)

In the early evening of February 2, 2012, Dr. Speken, CROSS–PETITIONER’S TESTIMONY accompanied by a female APS case worker, interviewed Vanessa TS testified that she cares deeply about the AIP the AIP in his apartment. The AIP was alone and opened and that her attachment and affection for the him was the door clad in only a tee-shirt and dirty underwear. inspired by the 80 year old’s chivalrous defense of her When asked by the case worker to clothe himself, the AIP against Jimmy Wilson, her violent abusive boyfriend.10 refused and remained in his underwear throughout the She denied any knowledge of the money Jimmy received interview, seemingly oblivious to the way he from Brian at the AIP’s request, and asserted that she appeared.(Hr’g Tr., pp. 231–232, April 12, 2013, Dr. changed the AIP’s phone number because Brian’s calls Speken aff in support of petition, dated May 9, 2012) bothered the AIP. (Hr’g Tr., pp. 436–438, 442, April 12, Although the AIP cooperated with the interview, little 2013) reliable or credible information was obtained from the AIP about his history or the adequacy of his current Shortly after she began working for him, the AIP initiated circumstances. their romance. They were married on April 29, 2011. Despite their marriage, no reliable evidence of Dr. Speken found the AIP’s short term and long term co-habitation was introduced. Asked whether she and the memory significantly impaired, as evidenced by the AIP’s AIP had sex, she responded “I guess you can call it that.”, inability to recall fundamental milestones in his life, such and laughed. (Hr’g Tr., pp. 426, April 12, 2013) as details regarding his World War II military service, past family life, work history, or even his present wife’s Cross–Petitioner denied orchestrating the AIP’s rapid name. (Hr’g Tr., pp. 240–241, April 12, 2013) Dr. Speken pauperization which commenced soon after they met. She also diagnosed the AIP as delusional, pointing out that the © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U)

AIP believed himself to be the son of Albert Speer, a notorious Nazi official, merely because the AIP and According to the Court Evaluator and uncontroverted in Albert Speer shared a similar sounding last name and the record, the AIP’s entire estate totaling between because his Jewish mother’s birthplace may have been $350,000.00 to $450,000.00 is gone. The Germany. (Hr’g Tr., pp. 232, 279–284, April 12, 2013) Cross–Petitioner’s financial exploitation of the AIP Dr. Speken further pointed out that during the interview, commenced no later than 2009. Initially, the the AIP engaged in “Witzelsucht”—inappropriate humor Cross–Petitioner confined her exploitation to the AIP’s to cover up memory failure a behavior characteristic of income and had him pay some of her bills.17 Over time she individuals with frontal lobe disease.(Hr’g Tr., pp. 240, accessed his savings and investments accounts at an 243–244, 293–294, April 12, 2013) increasing rate. (Hr’g Tr., pp. 359–361, April 12, 2013) The amounts and frequency of her withdrawals grew Overall, Dr. Speken found the AIP’s memory, judgment, commensurate with the degree of the AIP’s dementia. and insight impaired and rendered a diagnosis of rapidly After the marriage she took the remainder of the AIP’s advancing Alzheimer’s disease. He determined the onset life’s savings, leaving him pauperized and with credit of the disease to have occurred back in 2009.12 (Hr’g Tr., card debt.18 pp. 234–235, 243, 290, April 12, 2013; pp. 2–3, Dr. Speken aff in support of petition, dated May 9, 2012) Dr. The Court Evaluator’s investigation revealed Brian Speken’s findings were supported by a reported the Cross–Petitioner’s financial exploitation of neuropsychological assessment made nearly one year the AIP to the DA’s office and an investigation was prior to his own evaluation, which found the AIP’s commenced. However, once the Cross–Petitioner and AIP executive functioning “globally impaired” and his ability married, the DA’s office ceased its investigation. (Hr’g to verbalize, recall, and recognize severely impaired.13 Tr., pp. 345–346, April 12, 2013) Both evaluations reveal that the AIP’s compromised mental state existed for a number of years prior to this proceeding.14 (Hr’g Tr., pp. 315, April 12, 2013) OBSERVATIONS OF THE PARTIES Dr. Speken found the AIP vulnerable and susceptible to During the hearing the Court had ample opportunity to exploitation and easily influenced due to his dementia and observe the litigants’ demeanor in the court room and opined that the AIP did not possess the requisite mental draw conclusions and inferences therefrom. capacity to consent to marriage at the time the marriage purportedly occurred.(Hr’g Tr., pp. 297–98, 302–304, April 12, 2013) He explained that, “when the executive functioning is impaired, individuals suffering from The AIP dementia are vulnerable to permitting someone else’s The limitations on the AIP’s cognitive abilities and executive functioning to take over for them and therefore physical fragility were readily apparent from the bench as ....they lack the ability to withstand it.” (Hr’g Tr., pp. 299, were certain aspects of his overall personality. Although April 12, 2013) In sum, Dr. Speken concluded that the represented by counsel and present throughout the AIP is incapable of making an informed judgment on how proceedings, the AIP did not testify or meaningfully to handle his estate, whom to trust, and whom to marry.15 participate. He ambulated with a walker, required an aide at his side, and tired easily. He dozed off frequently during the proceedings. When alert, he engaged primarily in attempts at humor, blurting out such non-sequiturs as, COURT EVALUATOR “I had dementia”, “get the marbles out of your mouth”, *5 The Court Evaluator gave extensive testimony and and “I am a different person,” behavior consistent with provided a well-documented accounting regarding the Dr. Speken’s diagnosis of Witzelsucht. Obviously depletion of the AIP’s estate. He also obtained medical entranced by his wife, he randomly shouted out, “that’s records tracking the course of the AIP’s medical and my wife!”. At other times, he would struggle out his chair mental decline. Moreover, since concerns were raised and wander aimlessly about the court room seemingly about the AIP’s personal safety, the Court Evaluator was oblivious of the fact that a trial concerning his welfare asked to check in on the AIP until proper services were was taking place. obtained. Shortly after his appointment, the Court Evaluator reported back that the AIP had been found wandering in his apartment building late at night ringing his neighbors’ doorbells and that neighbors in his building The Cross–Petitioner had raised concerns about his welfare.16 On the stand, the Cross–Petitioner was evasive, and © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U) inconsistent regarding her employment history and her AIP in all likelihood, can no longer be safely maintained place of residence. Throughout the proceedings, Vanessa in the community as he had once envisioned. TS engaged in overt displays of affection toward the AIP by kissing his lips and by staying close and attentive to Sadly this case is not an isolated incident of financial him.The court found the Cross–Petitioner’s behavior not exploitation of the incapacitated. Often seniors afflicted only inappropriate, but a thinly veiled ploy to keep the with dementia, in the twilight phase between capacity and AIP under her sway and to create the false impression that incapacity, are exploited in plain sight with devastating she is a loving wife and a responsible caretaker. The consequences to the victims. The predators are seldom Court found Vanessa TS disingenuous, manipulative and held accountable. neglectful as a spouse and care-taker and gave her testimony no credit. Her strictly pecuniary interest for Efforts to redress elder abuse are still in their infancy. insinuating herself into the AIP’s life was utterly However, similar challenges have been met and apparent. tremendous strides made in “difficult to prosecute” cases such as domestic violence, child abuse and sexual offenses. If our community is serious about protecting its most vulnerable adults, new initiatives and coordinated Legal Analysis strategies must likewise be developed and implemented.22 *6 It is uncontroverted that the AIP is an incapacitated person within the meaning of Article 81 of the Mental Accordingly, based on the foregoing; it is hereby Hygiene Law. (See, MHL §§ 81.01 and § 81.02, generally) Cognitively and physically impaired, he ORDERED AND ADJUDGED that the Petitioner’s requires assistance with all of his ADLs (MHL § 81.02(c) nominated guardian Jewish Association of Services for 1 and MHL 81.03(h)). His impairments imperil his safety the Aged (JASA), with offices at 132 West 31 Street, New and welfare, and he is unaware of his functional York, N.Y. 10001, and telephone number: 212–273–5300, limitations. (MHL § 81.02(a) 1 and MHL § 81.02(b) 2. is appointed guardian for both personal and property The AIP cannot handle his financial affairs (MHL § needs of the AIP; and it is further 81.02(a) 1) and lacks the capacity and judgment to duly designate a trustworthy individual to assume these ORDERED AND ADJUDGED that the guardian shall responsibilities. (MHL §§ 81.02(b) 1., and 2., § 81.03(e)) investigate the AIP’s financial affairs and has authority to bring any appropriate applications on behalf of the AIP In 2006, the AIP took affirmative steps to protect himself including a turnover proceeding and /or a motion to annul by appointing his most trusted friend, Brian, as his or void the marriage between the AIP and the attorney-in-fact and health care proxy, and placed “In Cross–Petitioner; and it is further Trust For” designations on his accounts.19 Ordinarily, these advance directives, in the hands of an appropriate *7 ORDERED AND ADJUDGED that the previously agent, would suffice and a guardian would not be suspended Power of Attorney appointing the required. (MHL § 81.01, § 81.02, § 81.03(e)) However, Cross–Petitioner and any health care proxy heretofore the POA appointing Brian was purportedly revoked by the executed naming Cross–Petitioner as agent are hereby AIP, no doubt at the behest of the Cross–Petitioner.20 vacated; and it is further Since the AIP no longer has sufficient capacity to designate an agent and no suitable family is available, this ORDERED AND ADJUDGED pursuant to MHL § court is compelled to appoint a guardian to establish a 81.23(b) that the Cross–Petitioner is hereby restrained plan of care for him.21 from selling or in any way disposing of the BMW bought with the AIP’s funds; and it is further

ORDERED AND ADJUDGED that all previously FINDINGS AND CONCLUSIONS issued TROs and the order of spousal support shall This court finds the AIP to be an incapacitated person as remain in full force and effect until further order of this defined by Article 81 of the Mental Hygiene Law and that court; and it is further guardianship is the least restrictive form of intervention and will not appoint the Cross–Petitioner Guardian. ORDERED AND ADJUDGED that the Cross–Petition is denied in it’s entirety; and it is further Through a steady course of seduction and isolation, and veiled in the cloak of marriage, Vanessa TS has managed ORDERED AND ADJUDGED that all fees and to exploit the AIP with impunity. As a consequence, the © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U) expenses of this proceeding shall be paid by the Cross–Petitioner23; and it is further This constitutes the decision and order of this court.

ORDERED, that Petitioner shall serve a copy of this order on the Cross–Petitioner and her counsel forthwith; and it is further All Citations

ORDERED, Petitioner shall settle an order of 39 Misc.3d 1242(A), 975 N.Y.S.2d 365 (Table), 2013 WL appointment consistent with the foregoing decision and 3155787, 2013 N.Y. Slip Op. 50988(U) order or appear in court on July 18th 2013 in Part 76G at 10:00 am.

Footnotes

1 See, Social Services Law § 473.1(a)

2 At one point, counsel for the Cross–Petitioner said that Cross–Petitioner would file a medicaid home care application, but no medicaid home care was ever obtained. If the Cross–Petitioner did indeed file the medicaid application, it was either incomplete or otherwise unapproved. The Temporary Guardian’s efforts to obtain said benefits have since been impeded by their inability to procure original and reliable documentation.

3 APS case records and VA Hospital records indicate that Cross–Petitioner continued to live separate and apart from the AIP even after the marriage.(See, Court Exhibit 1, VA Hospital record at 81., Verified Petition dated June 11, 2012, Hr’g Tr., pp. 199, 205, April 8, 2013). Moreover, various appointees on numerous visits found no evidence that Cross–Petitioner was living with the AIP. Despite living elsewhere Vanessa TS had access to the AIP’s apartment and refused to allow the court evaluator entry.

4 Cross–Petitioner refused to pay spousal support. Once an account held in her name, and funded from the AIP’s prior account, was located, orders dated December 5, 2012 and March 23, 2013 were issued directing the bank to pay all due and owing spousal support to the Temporary Guardian. Additionally, Cross–Petitioner’s failure to comply with reasonable discovery requests resulted in the issuance of so ordered subpoenas.

5 Brian and Dr. Speken testified that AIP had been married, perhaps twice, before his current marriage and may have one or two children. No evidence of marriage or divorce certificates for said prior marriages was produced. Much about the AIP’s past is vague due to the his dementia, but by all accounts he either has no family or has been completely estranged from his family for decades. (Hr’g Tr., pp. 155–157, April 8, 2013)

6 Financial documents indicate that the AIP’s estate consisting in large part of stocks decreased considerably during the economic downturn in 2008. Brian testified that the AIP may have lost approximately $125,000 when the “Entera Trust went bust.” (Hr’g Tr ., p 132–134, April 8, 2013).

7 The AIP’s recovery from the hip replacement was long and was complicated by pneumonia, a right lung lobectomy, bed sores, and an ulcer. He spent several months in St. Albans Rehabilitation and was transferred back to the hospital due to the above complications. He first went into the VA hospital in March 2007 and was finally discharged from the rehabilitation center in February 2008. During this period he also became incontinent. (Court’s exhibit 1, VA Hospital record at 199)

8 For example, the AIP began misplacing items in his once orderly apartment, stopped taking care of his hygiene and became increasingly forgetful and disoriented. (Hr’g Tr., pp. 145,163–166,169–170, 200, April 8, 2013) On one occasion, he got lost returning from the grocery store, and on another, in 2011, he wandered into LICH. (Hr’g Tr., pp. 160, April 8, 2013)

9 Cross–Petitioner provided a marriage certificate indicating that she married the AIP on April 29, 2011. The authenticity of said document was not in issue.

10 Cross–Petitioner claims that the AIP assisted her in the prosecution of her boyfriend for a felony offense. However, she denied testifying in the matter and when pressed for details, could not even recall the sentence Jimmy Wilson purportedly received. (Hr’g Tr., p. 426, April 12, 2013).

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U)

11 The AIP’s banking transactions are discussed more fully below.

12 Dr. Speken testified that the dementia process was well advanced in February 2012 and that the AIP’s deficits noted in the earlier VA medical records, including the AIP’s loss of his sense of smell, together with his delusional thinking, demonstrated within a reasonable degree of medical certainty that the dementia had begun in 2009. (Hr’g Tr., pp. 298–293, April 2013)

13 The VA doctor’s evaluated the AIP in June 2011. The report states that the AIP and Vanessa TS were given referrals to the Alzheimer Association. Just two months after getting married, the AIP was unable to recount the circumstances about how he met his wife, and was no longer able to remember his most basic background information. (Court’s Exhibit 1, VA Hospital records pp. 78–86)

14 Dr. Speken explained that executive functioning is the ability to make good decisions and that the diagnosis “globally impaired” indicates a more serious impairment than does the diagnosis of “grossly impaired.” (Hr’g Tr., pp. 243–244, April 12, 2013)

15 Although the relief sought in this Article 81 petition does not include dissolution of this marriage, the facts elicited at trial support an application for such relief.

16 After the Petition was filed, the AIP, lost and disoriented, wandered into LICH in the middle of the night, “wearing a diaper and a sweatshirt jacket,” and sometime in the fall of 2012 the AIP was seen trying to use his key to unlock his neighbor’s apartment”.(Hr’g Tr., pp. 364, April 12, 2013; Court’s exhibit 6, Supplemental Report of Court Evaluator pp. 9)

17 The bank informed Brian that the AIP’s social security benefits had been diverted from the AIP’s bank account. Moreover, Brian testified that Vanessa TS’ bills including her rent were being paid by the AIP. (Hr’g Tr., pp. 175,177–179,186, April 8, 2013)

18 As noted previously, the AIP’s estate was in excess of $350,000 in 2008 after it had lost value in the 2007–2008 economic down-turn. The BMW cost approximately $45,000.00 and the Cross–Petitioner’s daughter’s tuition was purportedly $40,000.00, paid in cash. In January 2012, a Sovereign Bank account with approximately $110,000.00 was opened in the AIP’s name and was fully depleted by the end of said month. (Court’s Exhibit 5, Sovereign Bank Statements pp. 2.) In 2012, Cross–Petitioner opened a Chase account solely in her name which had approximately $120,000.00. This is the restrained account currently used to pay the court ordered spousal support.

19 Said ITF or Pay on Death (POD) designations constitute a means to dispose of assets in lieu of a last will and testament.

20 If the POA was in fact a durable power of attorney and the attorney-in-fact believed that the revocation had occurred during a period of incapacity, the attorney-in-fact would have every right and arguably the duty to contest the revocation. However, that did not occur in the case at bar.

21 A second POA designating Cross–Petitioner as agent was discussed but not introduced into evidence. However, its validity is rendered moot by the decision herein. Brian’s POA could be deemed in effect since the court is invalidating the revocation, but given the overwhelming work involved in caring for the AIP at this time and the AIP’s limited resources, a community guardian would better serve the needs of the AIP.

22 A protocol requiring financial institutions, health care providers, licensed home care providers, banks, hospitals, doctors, and designated agents to report suspected abuse to Adult Protective Services and to law enforcement should be implemented. For example, such as mandatory reporting of suspected financial elder abuse, banking alert systems, adequately staffed and trained police units to investigate elder abuse and new prosecutorial approaches including special laws with enhanced penalties for the exploitation and endangerment of the impaired, would foster greater protection of vulnerable seniors.

23 But for the Cross–Petitioner’s actions there would have been no need for this guardianship proceeding. Brian as the POA and health care proxy could have seen to all the AIP’s needs including utilizing the AIP’s savings for home care, rental of a more suitable apartment or private pay assisted living.

In re Doar, 39 Misc.3d 1242(A) (2013) 975 N.Y.S.2d 365, 2013 N.Y. Slip Op. 50988(U)

Divorce Law Protecting Elderly From Suspicious Marriages Caused by Undue Influence

Alton L. Abramowitz, New York Law Journal

August 16, 2016 | reprints

Alton Abramowitz

The headline in The New York Times, "Trial on Sumner Redstone's Mental Competence Set for October" (July 28, 2016), shouts the news involving one of America's richest individuals, a 93- year-old billionaire in poor health, whose own daughter is being accused of having "unduly influenced" him to dismiss two trustees, described as his "longtime confidants." In another recent case, also involving Redstone, a suit brought by his "former companion" was dismissed without the judge ruling on Redstone's mental capacity, while at the same time finding that he "suffers from either mild or moderate dementia." Similar tales have provided fodder for tabloid sensationalism and for more traditional news reporting. Take for example, the case of the famed Broadway producer, David Merrick, who, after recovering from a stroke at the age of 82, was described by The New York Times on March 24, 1994, as sitting in a wheelchair in our state's Court of Appeals, while his lawyer argued against an application by his wife, who was younger than he by 32 years, to compel him to adopt a 6-year-old boy and a 4-year-old girl, whom he had only met on four occasions. What was instructive in that case was that it was his second marriage to the same woman, whom he accused of taking advantage of him while he was incapacitated in order to gain control of his fortune by creating heirs whom she would control on the basis of his adoption of them.

Our divorce courts are presented with similar stories of less prominent elderly individuals on a daily basis, particularly at this time in our history when the graying "baby boomer generation" is reaching retirement in droves and drawing down on their pensions and Social Security benefits.

The National Clearinghouse on Abuse in Later Life has created a "power and control" wheel similar to that familiar to most family lawyers in the domestic violence and spousal abuse contexts.1 The oft-cited tactics employed by abusers against the elderly include, among other things, physical abuse, restraints to chair or bed, sexual abuse, exposure to pornography, public humiliation, denial of food or heat or medication, misleading family members about the elderly person's condition, theft of money or possessions, abuses of power of attorney, threats of violence, etc. And, significantly, the abuser is oftentimes a caretaker or spouse or a caretaker who has forcibly or coercively or deceptively taken on the role of spouse by means of a bona fide marriage ceremony. Domestic Relations Law

In the matrimonial courts, there are clear cut situations where judges are presented with questions under specific statutes. "Diminished capacity" provides an opportunity for the aggressively devious to take advantage of the elderly in many respects. Historically, New York has provided remedies. Domestic Relations Law (DRL) §140 (c) allows a relative who "has an interest to avoid the marriage" to seek an annulment on the grounds that the party was "mentally ill" (either during or after the party's lifetime), and a mentally ill person may seek an annulment upon being restored to "sound mind." Further, if no relative has come forward to seek the annulment, the court may allow "any person as the next friend of the…mentally ill person" to maintain the action.

Similarly, an annulment action can also be maintained by the party or by a relative who has an interest to avoid the marriage, to set aside a marriage on the basis that the party's consent was obtained by force or duress or, subject to the statute of limitations, fraud. A "relative who has interest to avoid the marriage" would include a relative who would receive a larger inheritance if the marriage were to be annulled. See, e.g., Bennett v. Thomas, 38 A.D.2d 510 (4th Dept. 1971). Thus, one need not be a guardian in order to seek to void the marriage.

However, if the parties voluntarily cohabited after the discovery of the fraud or duress, then the action is barred. Thus, a marriage to an impaired elderly person with "diminished capacity" obtained by a caregiver or other individual solely for the purpose of financial gain can be annulled. For relatives of the impaired elderly, the safety adage of "when you see something, say something" is an appropriate warning and admonition that lawyers should convey to the families and friends of elderly people.

There are murkier situations where the problems may not be quite as obvious to the outside observer, and where a court may not be initially involved. For instance what does an attorney do when a client is brought in by his "spouse to be" for the purposes of preparing a prenuptial agreement, or, by his "new spouse" for a postnuptial agreement or by a "caretaker" or a relative for estate planning, and the client's demeanor or conduct causes the lawyer to become concerned that the client suffers from diminished capacity, or that the client is being coerced, or is under duress from the other party, or may be the victim or potential victim of fraud? Confidentiality

Guidance, albeit not completely satisfactory or sufficiently specific, can be found in the Rules of Professional Responsibility. 22 NYCRR, Part 1200. The quandary created at the outset is a direct result of a lawyer's obligation/duty to maintain confidentiality for the client.

Rule 1.14 pertains to an attorney's duties toward a "Client with diminished capacity," and specifically provides:

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of …, mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

The interplay between Rule 1.14 and the rule it references, Rule 1.6, exists because the latter prohibits a lawyer from "knowingly" revealing information that is confidential. That rule provides the following definition: "Confidential information" consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) that the client has requested be kept confidential.

Rule 1.6 then goes on to state, among other things: A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: "to prevent reasonably certain death or substantial bodily harm." A lawyer may also reveal or use such information "to withdraw a written or oral opinion or representation previously given by the lawyer still to be relied on by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;…" One can only imagine the ethical (and, perhaps, moral) conundrums faced by attorneys in situations akin to those described with respect to clients like Sumner Redstone or David Merrick. Cases

Two cases since 2010 provide some insights into the issues confronting lawyers and the courts. The first, In re Dandridge, 120 A.D.3d 1411 (2d Dept. 2014) is the story of Aldo D., who suffered from Parkinson's disease and dementia. During the pendency of an Article 81 guardianship proceeding, Aldo accompanied his caregiver to a funeral in Georgia. During the time that they were in Georgia, he and the caregiver were married. Aldo's temporary guardian in the guardianship proceeding asked the court to appoint a psychiatrist to determine if Aldo had the capacity to enter into a marriage.

The trial testimony revealed that "Aldo D. suffered from Parkinson's disease, and the temporary guardian testified that he observed symptoms of dementia in Aldo D. For example, the temporary guardian related that Aldo D. did not seem to understand that he was being evicted from his apartment, and that he had married without intending to do so. The temporary guardian further testified that Aldo D. was very limited in his ability to walk and dress himself, and he could not cook for himself. He did not recognize his need for help. When questioned by the court, Aldo D. repeatedly denied marrying [his caregiver], and did not want to be married to her. The [caregiver] acknowledged during her testimony that they had, 'to a degree,' two marriage ceremonies, because, at the time of the first ceremony, Aldo D. 'wasn't feeling very well.'"

The Appellate Division held that the trial court had sufficient evidence before it to establish that Aldo D. was incapacitated and to annul the marriage, but was constrained to remand for a hearing on the issue of capacity because the pleadings had never been amended to include a cause of action for annulment, thereby depriving the caregiver/spouse of her due process right to "notice and an opportunity to be heard."

The second case, Campbell v. Thomas, 73 A.D.3d 103 (2d Dept. 2010) was a post-death action for an annulment where the decedent's caregiver had married him while his daughter was away on vacation and, among other nefarious deeds, had subsequently transferred all of the decedent's assets into her own name. On this appeal, the Appellate Division was asked to opine on whether a determination that the marriage "was null and void renders the marriage void ab initio for purposes of the right of election that [the caregiver] had asserted" in the context of the probate of the decedent's estate.

In holding against the caregiver, the appellate court stated, "We are confident that the Legislature did not intend the statute to provide refuge for a person seeking to profit by means of a nonconsensual marriage. And our holding that the statutory right of election may be forfeited is limited to just such a situation, that is, where an individual, knowing that a mentally incapacitated person is incapable of consenting to a marriage, deliberately takes unfair advantage of the incapacity by marrying that person for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of that person's intended beneficiaries." Helpful Information

Fortunately, the New York State Office of Court Administration (OCA) under the Supervision of Justice Deborah Kaplan, the Statewide Coordinating Judge for Family Violence Cases, has created a page on OCA's website that is full of links to helpful resources for laypeople, attorneys and judges.2 Suffice it to say, whenever a lawyer or judge, or layman becomes aware of circumstances that appear to present evidence of elder abuse or neglect or other mistreatment, this is a good starting point in an effort to remedy the problem. But, as has been said above, most importantly, no matter who you are, "if you see something, say something" and do not allow the problem to fester.

Endnotes:

1. http://www.ncall.us/content/abuse-later-life-power-control-wheel.

2. http://www.nycourts.gov/courts/family-violence/index.shtml.

HON. JUDITH J. GISCHE NYCLA - CLE PRESENTATION NOVEMBER 9, 2016

GREY DIVORCE1

Introduction- What is a “grey” divorce?

Grey divorce (sometimes “gray” divorce) refers to the demographic trend of increasing divorce rates among older ("grey-haired") couples in long term marriages. An oft-cited and classic example of this phenomenon is former VP Al Gore's divorce from his wife, Tipper, after 40 years of marriage (definition adapted from Wikipedia [https://en.wikipedia.org/wiki/Grey_divorce, accessed October 5, 2016]).

The reasons for such divorces are as varied as the couples themselves. Some couples separate once they have an empty nest, the rationale being that they stayed together for the sake of their children. Americans are living longer, meaning they are spending more years in marriage, unless they decide otherwise. In some cases, spouses dread the prospect of living their next 10, 20 or more years in a stale marriage; eager to live their remaining years more happily, they opt for divorce. Those couples who marry later in life may have more financial independence; this makes it easier for them to make the transition back to being single. Finally, divorce has less of a stigma than it once had making it a more realistic and viable option for individual who would never have considered making such a bold move [see attached list of various articles that have discussed these issues].

I. Maintenance:

Maintenance, once called “alimony” (DRL 236 [A]) and presently referred to in some cases as “spousal support,” refers to a financial award of future periodic payments (usually monthly) made by one spouse to another, regardless of gender.

1These materials were prepared by Eileen Kaspar, Esq., Principal Law Clerk to Hon. Judith J. Gische.

Page 1 of 9 The paying spouse is referred to as the “payor” and the recipient is the “payee.” Maintenance may be fixed by agreement between the parties, or ordered by the court, either for a definite (durational) or indefinite (nondurational), period of time.

II. “New” Maintenance Guidelines:

On September 25, 2015, Governor Cuomo signed into law a new post-judgment maintenance guidelines bill that went into effect on January 25, 2016 [actually 1/23/16, but that was a Saturday]). It does not apply to a divorce action commenced prior to that date. Nor do these guidelines apply in situations where the parties have entered in an agreement providing for maintenance. The income cap for application of the post-divorce maintenance formula has been set at $175,000 of the payor’s income. There is a cost of living adjustment (COLA) that increases the cap every 2 years according to a set formula that will determined and published by the office of court administration (DRL 236[B][6][b][4]).

A. There are two sets of formulas for setting the amount of post-divorce maintenance. One formula applies to couples with dependent children; the other formula applies to couples where there is no child support being paid by the payor spouse to the payee spouse. This outline will focus on the latter category, since it is the one most likely applicable in grey divorces.

1. To compute permanent, guideline support for couples where child support is not an issue:

Step 1: the court subtracts 20% of payee’s income from a sum equal to 30% of payor’s income up to $175,000;

Step 2: add together payor’s income up to the cap plus payee’s income, multiple that sum by 40%, then deduct payee’s income from that amount

Step 3: permanent support is the lower of the two amounts calculated above.

Page 2 of 9 Example 1- If the payor spouse earns $100,000 per annum and the payee spouse earns $50,000 then: STEP 1 STEP 2 $100,000 x 30% = $30,000 $100,000 + $50,000 = $150,000 $50,000 x 20% = $10,000 $150,000 x 40% = $60,000 $30,000 - $10,000 = $20,000 $60,000 - $50,000 = $10,000 STEP 3 (comparison) $20,000 is greater than . . $10,000

$10,000 is guidelines amount.

Example 1- If the payor spouse earns $175,000 and the payee spouse earns $25,000 then: STEP 1 STEP 2 $175,000 x 30% = $52,500 $175,000 + $25,000 = $200,000 $25,000 x 20% = $5,000 $200,000 x 40% = $80,000 $52,500 - $5,000 = $47,500 $80,000 - $25,000 = $55,000 STEP 3 (comparison) $47,500 is lesser than . . $55,000

$47,500 is guidelines amount

B. There are also guidelines for setting permanent maintenance where the payor’s income is over the $175,000 cap, or where the guidelines amount would be unjust or inappropriate. In awarding maintenance for income over the cap, or when deviating because the amount calculated is unjust or inappropriate, the court considers the so-called fifteen (15) “deviation factors.” Among them, and particularly relevant to grey divorce, the age and health of the parties, present and future earning capacity, wasteful dissipation of marital property, the availability and cost of medical insurance, tax consequences to each party and equitable distribution of assets (DRL 236[B][6][e][1][a] - [o]).

Page 3 of 9 C. In setting the duration of such maintenance award, the new guidelines provide an “advisory” formula for the court to follow. This formula is using a calculation based upon length of the marriage, commencing from the date the parties were married up until the date of commencement of the action. The formula or schedule is as follows:

Length of marriage % of the length of the marriage for which maintenance will be payable

Zero to 15 years 15% to 30% More than 15 to 20 years 30% to 40% More than 20 years 35% to 50%

For example- Hypothetically, in a 35 year marriage, a payee spouse might receive between 12.25 - 17.5 yrs of maintenance (i.e. 35% - 50% of 35 yrs). Regardless of whether the court decides to follow or deviate from this schedule regarding the duration of maintenance, the court must (“shall”), consider the factors set forth in the statute (DRL 236[B][6][e][1][a] - [o]).

D. Preliminary conference orders have been revised by the Unified Court System to reflect these guidelines. Interactive, fillable forms are available online: http://www.nycourts.gov/divorce/forms.shtml#Statewide

III. “Old” Maintenance Guidelines:

Although the revised guidelines include the newly delineated factors identified above, even under the old guidelines, the courts were required to consider a number of factors relevant to an award of permanent maintenance, including a spouse’s ability to earn income. Below are some examples of how courts have adjusted awards to take into consideration sources of income and financial needs of the parties in long-term marriages and as they age (see Damato v. Damato, 215 AD2d 348, 348-349 [2d Dept 1995, citing Hartog v. Hartog, 85 NY2d 36, 52 [1995]).

Page 4 of 9 1. Schupak v. Schupak, 288 AD2d 91 [1st Dept 2001]. Defendant ordered to pay plaintiff lifetime maintenance in the amount of $10,000 per month until she reaches the age of 65, which is then reduced to $6,000 per month until death or remarriage.

2. Taylor v. Taylor, 300 AD2d 298, 299 [2d Dept 2002]. In a 27 yr marriage, defendant ordered to pay maintenance until the plaintiff becomes eligible for full Social Security benefits at the age of 65, or until he retires, whichever occurs later, or until the death or remarriage of the plaintiff.

3. Penna v. Penna, 29 AD3d 970, 972 [2d Dept 2006]. In light of the parties' ages and their lifestyle during the marriage, plaintiff awarded maintenance only until the plaintiff becomes eligible for full Social Security benefits at the age of 66, remarries, or dies.

4. Litvak v. Litvak, 63 AD3d 691, 692 [2d Dept 2009]. Nondurational maintenance of $4,000 per month until plaintiff reaches age 65; $2,000 per month thereafter, until death of either party or plaintiff’s remarriage.

5. Alleva v. Alleva, 112 AD3d 567, 568 [2d Dept 2013]. Supreme Court should have awarded the plaintiff maintenance only until she becomes eligible for full Social Security retirement benefits or remarries.

IV. Life Insurance to secure support payments:

In directing that a payor spouse maintain a life insurance policy named the payee spouse as an irrevocable beneficiary,

Page 5 of 9 courts will take into consideration the payee spouse’s age, despite an award of nondurational maintenance (see Litvak v. Litvak, 63 AD3d 691, 692 [2d Dept 2009][nondurational maintenance awarded; defendant directed to maintain a life insurance policy naming the plaintiff as an irrevocable beneficiary in the face amount of not less than $675,000 until the plaintiff reaches the age of 65, and in the face amount of $425,000])

V. Retirement Assets and Their Effect on Support:

A. In determining the duration of post-divorce maintenance, the court should consider anticipated retirement assets, benefits and retirement eligibility ages, if ascertainable. If not ascertainable at the time of decision, then under the new guidelines the actual full or partial retirement of the payor spouse, with substantial diminution of income, “shall” be a basis for modification of the award (DRL 236 [B][6][f][4]). Note: this factor only applies to permanent maintenance awards after trial, not to support award payments the parties have stipulated to.

1. As a general rule, pension rights earned during a marriage and prior to the commencement of a matrimonial action are marital property subject to equitable distribution, even if the right to collect payments is unmatured at the time the action is commenced (Deluca v DeLuca, 97 NY2d 139, 144 [2001], citing Majauskas v Majauskas, 61 NY2d 481 [1984]).

2. Retirement benefits take several forms, including pension enhancement, social security bridge payments, and stock plans, the key inquiry being whether such compensation, regardless of what they are called, are intended as compensation for past services (Deluca v Deluca, 97 NY2d 139, 146 [2001]). Deferred compensation paid after a spouse’s retirement, in lieu of the receipt of greater compensation during the period of

Page 6 of 9 employment, is subject to equitable distribution (Raynor v Raynor, 90 AD 3d 1009, 1010 [2d Dept 2011]).

a) Consequently, under the broad interpretation of marital property in the equitable distribution law, formalized concepts such as “vesting” and “maturity” are not determinative of whether compensation received after dissolution of the marriage for services rendered during the marriage is marital property” (DeLuca v DeLuca, 97 NY2d 139, 144 [2001])

B) An employee benefit plan is subject to ERISA and under ERISA, a divorce judgment terminates a spouse's right to be deemed a “surviving spouse” under the ex-spouse's employee benefit plan. Therefore, after a divorce, only a QDRO can designate a former spouse to be a “surviving spouse” for purposes of allocating benefits under ERISA (McCoy v Feynman, 99 NY2d 295, 304 [2002]). Thus a QDRO must contain a direction about payments to an alternate payee, prior to the time the participant actually retires, although such payments do not actually commence until the participant attains the earliest retirement age permissible under the plan (ERISA § 206(d)(3)(G)(i)(I)).

C) Benefits received as part of any early retirement incentive may have some components that are martial property, although actually paid after the divorce. Thus, a package includes full pension benefits although the retiree ex-spouse did not worked the requisite number of years, that is martial property because it was compensation deferred until some point after the divorce like any other traditional payment and is based upon years of employment during the marriage (Olivo v Olivo, 82 NY2d 202, 207 [1993]).

1) If the retiree remarries, the ex-spouse is not entitled to a recalculation of the retiree’s pension benefits so as to negate the survivorship

Page 7 of 9 benefit bestowed by the retiree on his or her new spouse (Kraus v Kraus, 131 AD3d 94 [2d Dept 2015]).

VI. Social Security:

For many older couples who divorce, Social Security benefits are one of the most, if not “the” most important source of income they may have and rely on. The Social Security Administration has a retirement and benefits planner calculator useful in estimating benefits for a divorced spouse: https://www.ssa.gov/planners/retire/divspouse.html A divorced spouse (“Spouse A”) may qualify for benefits on the other, ex-spouse’s (“Spouse B”) benefits if the marriage lasted 10 years or longer, even if Spouse B has remarried, provided spouse A is age 62 or older; Spouse B is entitled to Social Security retirement or disability benefits and the benefit Spouse A is entitled to receive based on Spouse A’s own employment is less than the benefit spouse A would receive based on Spouse B’s work. This does not hold true if Spouse A, however, remarries. Whether and to what extent a pension benefit is marital or separate property is determined by the time period in which the credit for the pension was earned. Certain retirement incentives are not marital property. For instance, neither social security bridge payments in an amount equal to what the employee ex-spouse can expect to eventually receive from the government nor separation payments are marital property (Olivo, supra at 208) (see also, DeLuca v DeLuca, 97 NY2d 139 [2001]). One interesting case involving older spouses (in their 70's) hails from Supreme Court, Kings County (BC v. RC, 2016 NY Slip Op 50298[U]; 2016 NY Misc LEXIS 778 [Sup Ct. Kings Co.] 2/24/16). The parties, who had been married for 46 years, were each retired, their respective pensions were in payout status and each spouse had elected maximum monthly benefit payments. Both spouses also collected social security. Since their respective pension payments were markedly unequally (plaintiff’s pension was far smaller), the court ordered that plaintiff would retain the entirety of her monthly payments, but ordered defendant to pay an offset amount. In determining the amount defendant had to pay, the court also took into account defendant’s wasteful dissipation

Page 8 of 9 of marital assets during the marriage.

V. Health Insurance:

A. Medicare Benefits (for those 65 and over)

B. Typically, the obligation to maintain existing health care coverage is co-terminus with the obligation to pay maintenance (DRL 236[B][8][a]; Simon v. Simon, 245 AD2d 5 [1st Dept 1997]). In situations where there an ex-spouse is obligated to provide medical insurance coverage at the same level established during the marriage, but that level is unproved or for some reason changed, a court may require that the ex-spouse continue to pay the costs associated with medicare (Lomaglio v. Lomaglio, 131 AD3d 803, 805 [4th Dept 2015]). At least one court required that such payments continue until the ex-spouse for whom such insurance was obtained died, ostensibly because of her age and the nature of her illness (Lomaglio, supra).

Materials included: Revised DRL 236 [B] List of articles discussing divorce among older couples

Page 9 of 9 November 9, 2016

ARTICLES

The subject of later in life or “Grey Divorce” has engendered many articles

“Life After Divorce: More boomers are calling it quits after years of marriage,” by Sally Abrahms, AARP Bulletin, June 6, 2012

“Al and Tipper Gore’s grey divorce,” Anne Kingston Maclean’s June 1, 2010

“Memo to divorcing boomers: Watch your assets,” Jessica Dickler@jdickler, http://www.cnbc.com/2016/09/06/memo-to-divorcing-boomers-watch-yo ur-assets.html (accessed Oct. 5, 2016).

“Gray Divorce: A Financial Double Whammy For Women,” Jeff Landers http://www.forbes.com/sites/jefflanders/2016/07/13/gray-divorce-a -financial-double-whammy-for-women/#59bb03c770fc (accessed Oct. 5, 2016).

“The dilemma of repartnering: Considerations of older men and women entering new intimate relationships in later life,” Jenny De Jong Gierveld Ageing International, Sept. 2002, Vol. 27, Issue 4, pp 1-78 (http://link.springer.com/article/10.1007/s12126-002-1015-z, accessed Oct. 5, 2016)

“Boomers Are Making Sure the Divorces Keep Coming,” Ben Steverman (http://www.bloomberg.com/news/articles/2016-06-17/boomers-are-ma king-sure-the-divorces-keep-coming, accessed October 5, 2016).

“Get a divorce to maximize Social Security?” Liz Weston, (http://www.bankrate.com/finance/retirement/get-divorce-to-maximi ze-social-security.aspx, accessed Oct. 5, 2016).

“The Worst Retirement Move You Can Make,” Caren Chesler (http://www.thefiscaltimes.com/Articles/2011/09/22/The-Worst-Reti rement-Move-You-Can-Make, accessed Oct. 5, 2016).

“Don’t Let a Late-Life Divorce Ruin Your Retirement Plans,” Janna Herron (http://www.thefiscaltimes.com/2016/05/04/Don-t-Let-Late-Life-Div orce-Ruin-Your-Retirement-Plans, accessed Oct. 5, 2016). “Medicaid Protections for the Healthy Spouse,” (http://www.elderlawanswers.com/medicaid-protections-for-the-heal thy-spouse-12019, accessed Oct. 5, 2016).DIVORCE AND “SPOUSAL” SOCIAL SECURITY BENEFITS

Trish Hodny (2001)Journal of Contemporary Legal Issues

Paula Span, The Gray Gender Gap: Women on Their Own, The New York Times, October 11, 2016 Tuesday, Late Edition - Final, p.7

NC Tiller Rose, [untitled article], Los Angeles Times, October 9, 2016, p.45

Marquette Elder's Advisor Volume 1 Article 6 Issue 1 Summer

A Tale of Two Women Ann J. Pinciss

Follow this and additional works at: http://scholarship.law.marquette.edu/elders Part of the Elder Law Commons

Repository Citation Pinciss, Ann J. (1999) "A Tale of Two Women," Marquette Elder's Advisor: Vol. 1: Iss. 1, Article 6. Available at: http://scholarship.law.marquette.edu/elders/vol1/iss1/6

This Featured Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Elder's Advisor by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. A Tale of Two Women

This is a tale of two women, one living asked my secretary to be more specific and learned that it was the Esther known as Aunt Cookie, my her life to its fullest according to her best friend Dana's favorite relative and only living aunt. Because Dana lives in California and Aunt own wishes, the other dependent upon Cookie in New York, Dana had introduced me to her aunt a year before so that Aunt Cookie could the substituted judgment of another. have somebody "local" to whom she could turn in an emergency. Aunt Cookie was, at that time, 91 This tale is a cautionary tale, highlight- years old and fully competent. Aunt Cookie is an extraordinary woman. A tiny ing the challenges of balancing substi- lady with sparkling eyes and a sharp mind, she has to work very hard to keep her weight from falling tuted judgment against the best interests below 100 pounds. She was an accomplished musician until arthritis deprived her of dexterity, but her of someone who, because of incapacity, true love was art. She has produced a prodigious body of work-mostly paintings and drawings- cannot decide what is best for her. but also needlework, small sculptures, and tiles. Blessed with a wonderful sense of humor and of the By Ann J. Pinciss absurd, she finds amusement and delight in her neighbors and area shopkeepers, listens to the news, and prefers a good book or conversation to television. Though most of her friends are gone and Aunt Cookie the neighborhood in which she has lived for more eturning to my office after spending than 60 years has changed, she is comforted by fre- the morning in court for a guardian- quent phone calls from her niece and visits from ship proceeding, I was told "Esther's in her neighbors and their children. the hospital." As I must have at least By the time I received the call from her niece, half a dozen clients named Esther, I Aunt Cookie was "resting comfortably" after a mastectomy. We wondered why Dana had not heard directly from the doctor. It turns out that although I had taken great care to instruct Aunt Ann J. Pinciss, Esq., is a sole practitioner who devotes Cookie to make sure her regular doctor had a copy her professional time to elder law and trust and estate of her health care proxy and living will (she had matters, including the representation of elderly clients executed at least four sets so that everyone could and their families in connection with preservation of have an "original"), she had not done so. She had assets, Medicaid, guardianship, and other related mat- simply filed them with all her other valuable ters. papers-under the pink sheets in a chest in her bed-

18 ARTICLE A Tale of Two Women :19 ARTICLE A Tale of Two Women 19 room. Fortunately, Aunt Cookie had called Dana Aunt Cookie signed all the papers, and I imme- after the diagnosis and was competent to accede to diately went to her bank to move her accounts into the procedure. It was, however, a close call, in that the trust. I consolidated her cash and certificates of a frail woman could have been rushed or bullied deposit into the trust checking account, but left her into an unwanted or unnecessary procedure by with a personal checking account with instructions overzealous medical staff. to her bank to maintain a minimum balance at all Aunt Cookie was distraught after the surgery times. I also cleared out the safe deposit box where and refused to allow me to visit her. But, at my she kept all her stock certificates. What a surprise! insistence, she agreed to allow my trusted geriatric Aunt Cookie was sitting on a tidy nest egg of secu- care manager, Steve, to see her in order to gather rities which had grown literally to millions of dol- some information for an assessment of her situa- lars by doing absolutely nothing for 30 years or tion, hopefully, in preparation for her return home. more! I immediately opened a trust account for her Dana and I discussed the nursing home/home care at a brokerage house. I have opted not to trade any question at great length and determined that, if at of Aunt Cookie's securities for two reasons: first, I all possible, Aunt Cookie should continue living at believe Aunt Cookie would do the same, and sec- home. Although I had done Aunt Cookie's will the ond, all of her securities are the bluest of the blue preceding year, along with a durable power of chips which could be relied upon to yield generous attorney and health care proxy/living will, I did not returns over time. (Aunt Cookie, true to her artis- really know the extent of her assets. Dana and I tic self, cannot seem to accept the value of her agreed, however, that her funds should be sufficient estate and still calls me periodically to ask if she for her to stay at home at least for a while. With can afford to send a check of $500 or so to a good Steve's assistance, we brought Aunt Cookie home cause.) and hired Arlene, who lives in five days a week, Aunt Cookie is blessed that she has an involved, and Gwen, who relieves Arlene on weekends. Aunt loving niece and that she has had the opportunity Cookie had lived alone since being widowed 30 to make her wishes clear. Not everyone is so fortu- years ago and liked it that way, but the transition nate. was relatively painless. As Aunt Cookie began to feel better, she told me Marlena that she simply could not face handling her finan- Marlena was a widow of ten years with no known cial affairs. In addition, the IRS was harassing her, relatives at the time of the guardianship proceed- and her accountant could not seem to solve the ing. She had no will, health care proxy/living will, problem. Every time she received a letter from the or durable power of attorney. To complicate mat- IRS, she panicked. Aunt Cookie discussed her feel- ters, there was a man who claimed to be her com- ings of financial helplessness with Dana, and Dana mon-law husband, a status not recognized in New asked me what could be done. York. First, I asked Aunt Cookie to sign a power of Marlena had gone to the hospital complaining attorney so that a new accountant could act in her of abdominal pain and was treated accordingly. behalf with respect to the IRS. Next, we had to fig- Following an endoscopy, she went into cardiac ure out how to manage her financial affairs and get arrest, and CPR was administered for 24 minutes. her bills paid without depriving her of her sense of I found Marlena curled up in a fetal position, in a autonomy. I suggested a living trust. Dana insisted persistent vegetative state. Nothing has changed for that I be the trustee and she the successor. more than a year. Understandably, Aunt Cookie was at first very ner- Marlena, fortunately, had several good friends vous about transferring all her property to a living and neighbors who were able to help me. Through trust, but once she understood the concept, and one of them, I learned that Ben, the man claiming because she trusted both Dana and me, she agreed to be Marlena's husband, was someone she had that it would provide a worry-free solution. Dana met at a senior citizen center where she often went and I had also talked about redoing Aunt Cookie's for lunch. Although Ben had lived with Marlena power of attorney and heath care proxy so that briefly, Marlena had recently sent him away; he both Dana and/or I could act in her behalf-again just happened to be visiting when Marlena took ill. to resolve the long-distance problem. He continued to live in her apartment, not paying 20 Elder's Advisor

rent, and sometimes making a nuisance of himself At this writing, Marlena is in the hospital with to the other tenants. There was no question of the a respiratory infection; I hope to move her to a new need for a guardian to look after Marlena's home nursing home with ventilating capabilities as soon and property. as the infection is under control. I am told that The court evaluator (sometimes called guardian Marlena's medical condition is not likely to ad Litem in other jurisdictions) for the guardian- improve very much due to her inability to fight off ship proceeding did a great job in sorting out the invasive bacteria. key facts from the fiction. Because the court evaluator had uncovered some assets, I was able to The Lesson almost immediately move Marlena to a nursing Marlena, unlike Aunt Cookie, never discussed the home with 24-hour care. I found a niece-by-mar- possibility of a diminished quality of life with her riage in Virginia who was able to assist me in learn- friends. I therefore have no idea of what she would ing about Marlena. For instance, she was able to choose for herself. She never made a will, nor a tell me that Marlena's husband had been a classical health care proxy/living will, nor executed a durable musician. We now constantly keep her BoseTM power of attorney. She did no advance planning. As radio on and tuned to a classical music station. her guardian, I have only the power to act "in her Over the ensuing months, Marlena's body has best interests." In comparison, Aunt Cookie's situa- relaxed and she occasionally opens her eyes in tion is far less ambiguous because she has given me response to familiar voices. Her health aides turn specific instructions, her niece is extremely support- her every half hour and suction her respiratory ive, and her doctor is "in the loop." tract every few hours. After we determined the value of Aunt Cookie's I next turned to the matter of Marlena's prop- estate, she chose to redo her will to provide a sup- erty. In assessing the extent of her assets, I discov- plemental needs trust for her younger brother, who ered that, like Aunt Cookie, Marlena had more is himself elderly and not well, with his children as than one million dollars! At the same time, I was ultimate beneficiaries of his share. Also, when I able to persuade Ben to leave the apartment on first did Aunt Cookie's will in 1996, she insisted threat of eviction and assorted other dire conse- that all her artwork be destroyed at her death quences. I also negotiated with Ben's daughter for because she said it was created only for her own the return of Marlena's property, which the daugh- enjoyment. Although she still insists that she ter had helped Ben remove from the apartment. I prefers her works of art be destroyed, after discus- suspected that most of what had been taken had sion with Dana and me, she has agreed to allow been purloined, but since I had no proof, I had to Dana, her executrix, to use her discretion as to be satisfied with what was returned. their disposition. How helpless I feel that I cannot Marlena has no will. I was extremely concerned do the same for Marlena! I know the value of her that if no relatives were found, Marlena's entire assets, but all I can do is conserve them and spend estate would go to the State of New York at her them wisely for her benefit and comfort. death. At Christmas, she received several cards, My prayers for Aunt Cookie are not only that and I contacted those people whom I could identi- she may live many more life-filled years, but also fy in the United States. To date, I have found a first that when the time comes, she will die as she has cousin on the paternal side and several first cousins lived-gracefully. But what about Marlena? Should once removed. With regard to the maternal side, I I, as guardian, continue to fight the infections with have written some letters to Germany that I hope antibiotics, or should I just insist that she be made will bear fruit. When there is no will and the dece- comfortable and let nature take its course? Where is dent's relatives cannot be readily determined, New the line between best interests and substituted judg- York State requires a kinship proceeding before ment? How can I know what is in her best interests? distribution. To that end, during the summer I Is it not my judgment when I decide what is in made a trip to see the 76-year-old step-mother of Marlena's best interests, and, therefore, have I not the first cousin to take her affidavit of kinship substituted my judgment for hers? Should I then because I feared that she might not be available authorize what I can to keep her alive on the outside when Marlena dies. chance that she will someday be able to communi- ARTICLE A Tale of Two Women 21

cate? Must I suspend my own belief in a person's now make my clients promise faithfully to give right to die with dignity? Is Marlena's right to die their advance directives to their agents and doc- with dignity in her best interests? Does incapacity tors, and, if they are ambulatory, to carry a copy void that "right" because there is no legal right to with them at all times. It is clear that if your die with dignity and, absent evidence of a choice on client's wish is not to leave their final-and prob- Marlena's part, I cannot make that choice for her? ably most meaningful-decisions in the hands of a Perhaps, Marlena will fight off the bacteria this time, stranger, you, as their lawyer, should encourage allowing me to put off my decision for another day. them to use the tools available-durable powers of The tale of these two women has become a attorney, health care proxies, living wills-to convincing cautionary illustration for my clients. I avoid this result. 5/3/2016 Senio" Unableto Sign a Will,Trust, or Power ofAttorney-AgingCare.com

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i Enter Zip Code or City, ST 18 Comments j +F0II0W Comments ® Assisted Living Q Alzheimer's &Memory Care I When Is aPerson Too O Independent Living Incapacitated to Sign a Will, @ Home Care O Hospice Care Trust, or PGA? @ Nursing Homes

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As an elder lawattorney Iam frequently faced with adultchildren who realizethat they simply have to take over for an aging parent. Maybe the parent is falling behind on bills or Free Helpful Guides has trouble dealing with the medical establishment. It Is always hard for a "child" to become the caretaker of the once-powerfuland dominant parent. Veterans Benefits Guide Unfortunately, the parent may be reluctant to signa power ofattorney (PGA) empowering Find federal benefits available to your family. the child to make legal decisions forthe parent, since that act Is frequently seen as an Get your veterans guide > admission that the parent may actually need such help. Combine that with the child's reluctanceto bring up the subject forfear that itmayanger the parent, and you have a recipe forprocrastination. Hencethe all-too-common situation wherethe attorney has to Home Care Guide decide ifa parent (or spouse) Is too incapacitatedlegally to sign a will, trust, or powerof How to find, hire and manage attorney. home care. Get the home care guide >

Many people are surprised to findout that a person with Alzheimer's or under a ^ Careglvers' Survival Guide guardianship may still be legally competent to sign a will. That's because under the laws " Everything you need to care ofmoststates, a personis legally competent tosign a will ifat the time ofthe signing he I for an elderly family member. or she meets the following tests: Get the careglvers' guide >

• Knows the natural objects of his bounty (I.e., is aware of his spouse and children, If any) See All Careglving Guides >

• Comprehends the kind and character of his property (I.e., knows approximately his net worth and what kind of assets he owns) Get Answers • Understands the nature and effect of his act (I.e., realizes that it is indeed a will he is signing, and what that means) Ask other careglvers your question

• Is able to make a disposition of his property according to a plan formed in his mind

Thus, the lawyermust meet with the parent or spouse and try to discern the above. In 140 character left some cases, the lawyer may decide that the Individual Is too Incapacitated and thus the lawyer must refuse to prepare a will. Is there a difference between Power of Attorney guardianship and conservatorship? 17 hrs ago [ 11 Answers htlps://www.aglngcare.com/Articles/eJder-c^-sign-will-b-ust-power-of-attorney-153521.htm?utm_source=Newsletter&utm_meclium=Email&utm_campalgn=N... 1/3 5/3/2016 SeniorUnableloSignaWill, Trust,or PowerofAttorney - AgingCarexom

A slightly different test Is involved forsigning a power ofattorney. Here, the individual Can family siblings request my moms must be capable of understanding and appreciating the extent and effectof the document, financial statements on a monthly basis justas if heorshe weresigning a contract. Thus, the parent may be competent to sign a even though I have Power of Attorney? power of attorney, but not competent to sign a will. 18 hrs ago j 89 Answers

Atrustis sometimes deemed tobe more like a contract than a will, so thatthenecessary mental capacity needed to sign a trust may be less than that needed to sign a will. Recognizing that intoday's worldliving trusts are most often utilized as '\vill substitutes," some recent state statutes have made the test for a trust the same as that set forth above for a will.

Themental capacity tosign thedocument should not beconfused with the physical ability to sign one's name. The law will permit a person to sign an "X" (known as a "mark"), that, so long as properly witnessed, will sufficejust the same as a signature. Inaddition, if Enter your email address even a mark is not possible for the individual to make, then the individual can direct someone else to sign on his or her behalf. Sign Me Up!

Of course, the best advice is notto waituntil itmay be too late, but to have those conversations with family members while theyare still competent and ableto comprehend exactly what they're signing and why.

Next; When Family Doesn't Have PDAthe Results Can Be Devastating |ll Get Your Read moreabout: assigning power of attorney, living trusts, living will, power of attorney FREE Funeral

Related Articles 1;, Planning Guide H 7 Legal Issues That Caregivers Face I'-" Click here (J) 3 Must-Have Legal Documents for Elderly Healthcare The Difference Betweena POA, DurablePOAand Living Will

Caregivers Asked Dignity- LirS WILL CflLBBRATID* 3^ How can I get my father to finalize his will and trust? Can you set up a living trust for a parent withoutan attorney? When Mom set up her living trust, she named my sisterand Iboth as Power ofAttorney. What do we do if we don't agree?

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11/2/16

The Invisible Children Hearing the Voices of Adult Children When their Parents Divorce

Lauren Behrman, Ph.D. [email protected]

Reﬂections on Fact Pattern

What Adult Children Feel When Parents Divorce l Shock l Grief l Anger l Abandonment and Rejection l Guilt, Shame, Embarrassment

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Multiple Losses

•Loss of the Family •Loss of the Family’s world •Loss of Parents as a unit •Loss of Parents as Parents •Loss of Security •Loss of Family Home

Some Special Aspects for Adult Children l Divorce is a major shift in the reality and meaning of “family” for the adult child l Adult children can more easily be taken in as conﬁdants and/or protectors. l Others feel the child is all grown up and does not need to be actively parented and will just simply adjust to the divorce and “it should not be a big deal” l There is a lack of continuity of the family process for adult children who do not live at home

Unique Aspects of the Divorce Experience for Adult Children

l Greater wealth of l Ambiguity of role family memories l Peer relationship l Self-criticism with parent or l Confusion and reverse disorientation dependency l Spiritual issues l Parental jealousy l Responsibilities for minor siblings

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Shifts in Parenting Roles l Childhood: Shift from caretaking to teaching independence (Parent/Child) l Adolescence: Differentiation – Values clarification, consequences, risk reduction l Adulthood: Independence (Adult/Adult)-Advising, problem-solving, financial, setting up new life, meeting potential partners

Impact of Divorce Phases of Adulthood

l College Age Children Vulnerable moment-emerging from turmoil of adolescence and do not yet have life of their own. Financially dependent and haven’t yet created their own life, but expected to cope as an adult No stable home life as backup. Vacations home are draining and exhausting. Emotional turmoil makes it hard to concentrate on friendships, studies and making life altering decisions

Phases of Adulthood

l Upon graduating college and taking ﬁrst steps toward marriage and career l Question of commitment to other relationships becomes relevant l Hard to move forward when foundations are shaky l “Just as you’re coming to terms with reality, it no longer exists”

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Phases of Adulthood

l Well established in Adult Life- Marriage, Children, Home, Career

l Psychological earthquake – rootedness of the present rests on the ‘ﬁrm ground’ of the past

l Structure of responsibilities can serve as a buﬀer from becoming submerged in parental divorce

l Major responsibilities and possibility of tremendous stress from the divorce. Accumulated pressures can be overwhelming, the adult child can have a life that is signiﬁcantly complicated by a parent’s divorce even to the point of having to help their own children understand and adjust (when they as parents themselves are struggling to adjust).

l The ‘outside world’ does not oﬀer support- underlying message is one of denial of the distress

The Family as a Changing System l Divorce is about the re-conﬁguring of the family, not just about ﬁnances and parenting time l The family is a dynamic network of ever-growing inter- dependent relationships l Families have patterns, boundaries, rituals and traditions that have great meaning and can continue long after divorce l Yet, divorce is a disruption to the continuity and security of the system and impacts the adult child’s concept of “self”

The Role of the Family Specialist

l Brings the voice of adult children to the table – in ADR processes

l Educates the parents and professionals about the unique needs and experiences of adult children, esp. in the reconﬁgured family of divorce

l Provides perspective with which to understand the disillusionment that is experienced by the adult child

l Empowers adult children to establish boundaries and validates their emotional experience and reaction to this major shift in the family

l Facilitates the activation of healthy reactive forces for individuation and adult autonomy in the child, interfering with the regressive pull

l Provides screening evaluation and necessary resources and referrals to the adult children

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Where the Family Specialist Enters the System

l Disorientation- news of a major change disrupts the family’s life. Loss of ‘bearings’ l Revelations l A parents’ unhappiness over a long period of time l The gory details are revealed breaking basic taboos l Boundary shifts l Emotional storms (anger, sadness, fear) l Tensions among siblings l Cultural Vacuum - A major event with no ritual

Considerations for Parents with Young Adult Children l Planning often does not involve adult children – they have to ﬁgure it out (Thanksgiving, family events, etc.). l Adult children often feel obliged to follow the schedule for younger siblings, yet they often are not considered in the development of the parenting plan l The family specialist provides the opportunity to consider the needs of all the children

Unique Input of the Family Specialist

l Prepares parents for the intensity of their adult children’s reaction

l Protects against the long-term fractionalization of the family

l Uniﬁes the parents, orienting them to the relevance of their on-going parenting role with their adult children

l Attends to the pain of the adult child (and all the children) and their concerns about their parents’ pain

l Gives parents tools for addressing the unique needs of the adult child, building an on-going parental dialogue

l Provides an opportunity for positive stories and memories about the eventual outcome of parents’ divorce

5 11/2/16

The Invisible Children Hearing the Voices of Adult Children When their Parents Divorce

Lauren Behrman, Ph.D. [email protected]

The Gray Divorce Phenomenon workforce for a long duration, the financial settlement from a divorce may be his/her primary nest egg. The lump sum divorce settlement may even constitute the sole source of funds during By Arlene G. Dubin and Rebecca A. Provder retirement.

In order to help maximize assets, it is often helpful to consult An 82 year old client wanted a divorce from her husband of 57 with knowledgeable financial advisors both during divorce nego- years. When asked why, she responded, “I want to live a little tiations and on an ongoing basis after the divorce is finalized. before I die.” Furthermore, financial advisors can prepare a budget, which can A study conducted in 2014 reveals that the divorce rate for indi- provide a roadmap for prudent spending in post-divorce life. viduals 50 and older has doubled in the last 20 years.i Two decades ago, individuals 50 and older accounted for about 10% of Marital Residence divorces.ii Recently, the divorce rate for this age group spiked to approximately 25%.iii What’s more, approximately half of those Individuals often become emotionally attached to their homes, divorces occurred in first marriages.iv especially if they have lived in the same home for a long period of time and raised their children there. Many harbor a desire to When baby boomers walked down the aisle, they typically con- keep a large home for when their adult children and grandchil- sidered it was “til death do us part.” However, in the interven- dren come to visit. As a result, there may be strong disagree- ing years, divorce has become widespread and destigmatized. ment about who will retain the home in a divorce settlement or As a result, divorce rates for people in their 50s, 60s, and older - it may be a source of dissension if one party wants to retain the so called “gray divorces” - have soared. home while the other party wants to sell it. Common reasons cited for gray divorces: the parties have grown Of course, the parties may both prefer to downsize or otherwise apart; their children have moved out of the house; the parties start afresh. In certain cases, the only viable option is to sell the desire to pursue self-fulfillment and personal goals; or the par- marital residence because it may be a couple’s primary asset. ties have experienced a change in their circumstances, such as When approaching retirement, it may be necessary to sell the their health or employment status. In addition, improved medi- home in order to obtain liquid assets for self-support. cal care and increased life expectancy may provide an incentive to exit an unhappy marriage and to pursue a new chapter. Retirement Planning This article will address the particular challenges that present For individuals over 50, retirement accounts often comprise a themselves when older couples divorce. significant portion of the marital pot. Retirement plans can be turned upside down as parties may need to delay their date of Property Division retirement, work part-time and/or reduce their projected retirement lifestyle. Accordingly, the efficient and tax-free division of In long term marriages, one or both spouses may have been in retirement assets can be critical. the workforce for many years. As a result, a substantial portion of their lifetime earnings may be subject to division in the event Certain qualified retirement accounts, such as 401(k) or defined of a divorce at an older age. pension plans, may be divided on a tax-free basis pursuant to a Qualified Domestic Relations Order (“QDRO”).v The QDRO sets At any age, divorce can have a devastating financial impact, but forth how a retirement account is to be divided between the it can be especially difficult when it transpires later in life. Indi- parties and may account for earnings and losses thereon until viduals who earmarked a certain amount of assets for savings the distribution is made. Further, it can provide for the disposi- and retirement can face a daunting challenge when their marital tion of the benefits in the event of death. assets are split. When older couples divorce, there is less time to compensate for financial losses and rebuild savings. With regard to other retirement assets, such as IRAs, a QDRO is Income and assets that had been used to pay for one household not required to effectuate a tax free rollover, provided the trans- vi need to be stretched to support two households after divorce. fer is made incident to divorce. The divorce agreement can In certain cases, such as where a spouse has been out of the spell out the terms for the division of the IRA, and the recipient

405 LEXINGTON AVENUE NEW YORK, NY 10174-1299 TEL: 212.554.7800 FAX: 212.554.7700 www.mosessinger.com party can designate an account into which the funds should be spouse for health insurance benefits because he/she has been transferred. If the funds from an IRA are not rolled into another out of the workforce or has never worked outside of the home. IRA incident to the divorce, the recipient may face a tax liability. A divorce agreement can specify how such a spouse will receive health coverage post-divorce. Spousal Support An individual is eligible to receive COBRA benefits for three years following a divorce.xii A divorce agreement may set forth who is In 2015, in an effort to provide greater stability and consistency, to pay for the cost of COBRA. If divorcing parties are within three statutory law was amended to include guidelines governing the years of attaining age 65, they generally will be eligible for Medi- duration of post-divorce spousal maintenance.vii The new legis- care after the expiration of the COBRA period. However, issues lation includes an advisory schedule pertaining to the length of arise if a non-working spouse divorces prior to age 62 and there spousal support payments: (i) 0-15 years of marriage – 15% to is a gap between the expiration of the COBRA period and the 30% of the length of the marriage; (ii) 15 or more to 20 years of commencement of Medicare coverage. In this situation, it be- marriage – 30% to 40% of the length of the marriage; and (iii) comes necessary to figure out how to obtain medical insurance over 20 years of marriage – 35% to 50% of the length of the mar- during the “gap” period and who will pay for the coverage. riage.viii It remains to be seen over time how the guideline dura- Sometimes the parties may even delay the divorce to avoid a tional amounts for spousal support will be interpreted by the gap period. courts. The divorce agreement can also make provisions for payment of On the one hand, one spouse may have been a stay-at-home unreimbursed health expenses, which can be an enormous ex- parent for most or all of the marriage and have little or no em- pense for older couples. ployability at the time of a divorce. Also, there could be a great Divorce can radically transform preconceived notions of caregiv- disparity between the earnings capacity of both spouses, and ing in the event of illness. It may be advantageous for older cou- the less monied spouse may have been accustomed to a certain ples to maintain their long term care insurance and to specify in lifestyle over the course of a long term marriage. In order to the divorce agreement the allocation of those costs. If the long subsist, a spouse may require spousal support going forward for term care insurance is not already procured, it can be mandated a long duration, especially if sufficient savings have not been as part of the divorce process and the payment of its costs also amassed. set forth as part of the settlement agreement. On the other hand, if, for example, a couple is divorcing at age 60 and have been married for 30 years, pursuant to the duration Estate Planning guidelines, a spouse may otherwise be required to pay support beyond his/her retirement age. In order to address this poten- Under New York State’s intestacy law, the surviving spouse re- tial pitfall, the statute provides that the court shall take into ac- ceives $50,000 plus ½ of the estate if the decedent has children count “anticipated retirement assets, benefits, and retirement and 100% of the estate if the decedent does not have any chil- eligibility age at the time of the decision.”ix dren. Pursuant to New York’s Estate’s Powers and Trusts Law (“EPTL”) §5-1.2, a surviving spouse is only disqualified for intestacy purposes if: (i) there is a final decree or judgment of di- Social Security vorce, annulment or nullity or dissolving the marriage on the If an individual was married for 10 or more years, he/she may ground of absence; (ii) the marriage was void; (iii) there is a final receive social security benefits based upon a former spouse’s decree or judgment of separation; (iv) there is abandonment of employment record. In order to qualify, the individual must be the deceased spouse by the surviving spouse that continued at least 62 years old and unmarried, the former spouse must be until the time of death; or (v) the surviving spouse who, having entitled to receive social security benefits, and the benefit the the duty to support the deceased spouse, failed or refused to individual is entitled to receive based on his/her own work is less provide such support despite having the means to do so. x than the benefit based on the former spouse's work. Likewise, EPTL §5-1.4 pertains to the revocation of wills and rev- ocable trust provisions, beneficiary designations, and fiduciary The benefit is equal to half of the former spouse’s full social se- appointments. However, this revocation only takes effect upon curity benefit, which does not reduce the amount of social secu- divorce, judicial separation or annulment, rather than upon the xi rity benefits the higher earning spouse will receive. Moreover, commencement of a divorce case. remarriage by the higher-earning spouse does not impact the lower-earning spouse’s eligibility for social security benefits. A long period of time may transpire between when a divorce is commenced and when it is finalized. Therefore, in each case, but especially when an older couple is divorcing, estate planning Health and Long Term Care Insurance documents should be reviewed and reassessed. During the marriage, one spouse may have relied upon the other Notably, there are automatic statutory restraints that go into

July 2016 effect at the commencement of a divorce case.xiii These auto- For example, parents who divorce later in life may require finan- matic restraints include prohibitions regarding changes in bene- cial assistance from their children. A parent may need a place to ficiary designations on life insurance policies, changes of title of stay, even if temporarily, or may require financial contributions joint accounts, as well as certain other actions unless both par- in order to help make ends meet. Alternatively, the parties may ties consent in writing or there is a court order. have been providing assistance to their children and may not be able to afford to continue to do so. In addition, the parties may Under New York law, if the deceased party has a will, a surviving hold differing views as to how much largesse they should bestow spouse is entitled to an elective share of one-third of the de- upon their adult children both during lifetime and upon death. ceased spouse’s estate outright.xiv The surviving spouse retains the right to claim the elective share during the pendency of a divorce proceeding. Effect on Prenuptial Agreements “Sunset” clauses are commonly used in prenuptial agreements. Federal law requires qualified plans to provide that a surviving These clauses provide for the automatic expiration of a prenup- spouse receive at least half, and in many cases all, of the de- tial agreement upon the occurrence of a certain event (such as ceased participant’s benefits. A surviving spouse may waive childbearing) or after the passage of a certain period of time. A these rights with acknowledged consent, but typically this is not common benchmark is 10 years. In light of the gray divorce phe- done until there is a divorce settlement. nomenon, it may be advisable to forego a sunset clause alto- gether or provide for the prenuptial agreement to “sunset” after Impact on Adult Children a longer period of time. In light of gray divorces, the number of adults with divorced par- Love may be in the air once again after a gray divorce. A pre- ents has exponentially expanded. The divorce of parents can nuptial agreement can provide numerous benefits in a second have a profound impact on children even when they are marriage. For example, the prenuptial agreement may contain adults.xvi A parental divorce is considered a high stressor for provisions regarding what will transpire upon death in order to adult children, and many of them may grieve about the loss of accommodate children from a first marriage as well as a new their long intact familial unit. They also may tend to reflect and spouse. It can also contain provisions to protect separate prop- question their lives, and whether their parents perpetuated the erty assets from being slashed further in the event of another marriage for them until they were grown. divorce. Child support in New York is mandated until age 21, unless an earlier emancipation event has occurred.xvii Custody is an issue Conclusions xviii in New York until a child is 18. Accordingly, legal issues of For a myriad of reasons, there is a proliferation of divorce child support, custody and access often do not loom large in gray among couples who have been married for many years. It is divorces (although issues regarding the payment of college and important to obtain sound financial and legal advice during and graduate school tuition, as well as wedding expenses, often after a divorce in order to help maximize assets and prepare for arise). the future. If remarrying, a prenuptial agreement can balance the need to protect children from a prior marriage, preserve As a result of their age, adult children may be more likely to be assets for retirement, and provide for a new spouse. Life is not drawn into the divorce and hear details from each parent. Fur- over. A new chapter lies ahead. ther, the divorce may alter existing inter-family financial relationships.

Reprinted with permission from the July 25, 2016 edition of the New York Law Journal© 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - [email protected].

July 2016 Arlene G. Dubin and Rebecca A. Provder are partners in the matrimonial and family law practice group of Moses & Singer LLP.

i The Gray Divorce Revolution: Rising Divorce Among Middle- Aged and Older Adults, National Center for Family & Marriage Research Working Paper Series, Susan L Brown, I-Fen Lin (March 2013) https://www.bgsu.edu/content/dam/BGSU/college-of- arts-and-sciences/NCFMR/documents/Lin/The-Gray-Divorce.pdf. ii Divorce While Retired: Three Ways to Avoid More Pain, by Kris- tin Haugk, The Oxford Club, (May 16, 2016), http:// wealthyretirement.com/gray-divorce-retirement-three-financial- strategies-preserve-wealth/. iii Id. iv Id. v 26 U.S.C.A. §414(p) (West 2016). vi 26 U.S.C.A. §408(d)(6) (West 2016). vii N.Y. Dom. Rel. Law §236(B)(6) (McKinney 2016). viii N.Y. Dom. Rel. Law §236(B)(6)f) (McKinney 2016). ix N.Y. Dom. Rel. Law §236(B)(6)(f)(4) (McKinney 2016). x Retirement Planner: If You Are Divorced, Social Security Admin- istration, https://www.ssa.gov/planners/retire/divspouse.html. xi Id. xii United States Department of Labor, Employee Benefits Securi- ty Administration, Consolidated Omnibus Budget Reconciliation Act (COBRA), https://www.dol.gov/ebsa/newsroom/ fscobra.html. xiii N.Y. Dom. Rel. Law §236(B)2(b) (McKinney 2016). xiv N.Y. Est. Powers & Trusts Law §5-1.1-A (McKinney 2016). xv 26 U.S.C.A. §417(a) (West 2016). xvi Never Too Old To Hurt from Parents’ Divorce, by Jane Gordon Julien (April 21, 2016), http://www.nytimes.com/2016/04/24/fashion/weddings/never- too-old-to-hurt-from-parents-divorce.html?_r=0. xvii N.Y. Dom. Rel. Law §240(1-b)(b)(2) (McKinney 2016). xviii N.Y. Dom. Rel. Law §2 (McKinney 2016); N.Y. Fam. Ct. Act §119(c) (McKinney 2016); N.Y. Fam. Ct. Act. §651(a) (McKinney 2016).

July 2016

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July 2016

Faculty Biographies

SHERRI DONOVAN SHERRI DONOVAN & ASSOCAIES, P.C. 7 Dey Street, Suite 400 New York New York 10007 [email protected] www.sherridonovan.com Office: (212) 431-9076 PROFILE

• Divorce and Family Lawyer since 1986 • Mediator, Parenting Coordinator and Collaborative Law • Owner of Law Firm, Sherri Donovan & Associates, P.C. since 1988 • Director of Family Center • Neutral Evaluator for New York State Courts • Published author, public speaker, and legal expert media commentator • Family Law Consultant, National and International

AWARDS

• Selected in Top 10 Family Attorneys By National Academy of Family Lawyers • Ten Best Client Satisfaction Award by the American Institute of Family Law Attorneys • Super Lawyers 2016 • Nation’s Top One Percent by the National Association of Distinguished Counsel • Top Lawyers in New York by the Legal Network • Selected Family Lawyers by New York Magazine • Selected in Top 3 Female Divorce Attorneys in NYC by Divorce Saloon • Sylvia B. Garland Award for Excellence in Civil Litigation • Reginald Heber Smith Fellowship

PROFESSIONAL AFFILIATIONS

• Member of United States Supreme Court Bar • Co-Chair, Family Court and Child Welfare Committee, New York County Lawyers Association • Treasurer and Board Member, New York County Lawyers Association Service Fund • Family law section, NY State Bar Association, legislation and custody committee; • Member of Matrimonial Committee, Women's Bar Association; • Member of Matrimonial Committee, New York County Bar Association; • Association of Family and Conciliation Courts • Eastern and Southern District Federal Courts • Academy of Professional Family Mediators • New York Association of Collaborative Professionals • International Academy of Collaborative Professionals • Former Professor at the Gordon F. Derner Institute of Advanced Psychological Studies, Adelphi University • Legal counsel, NYC Small Business Congress

LECTURES

New York County Lawyers Association; New York City Bar Association; New Jersey State Bar Association; Thomson Reuters-West Legal Education Center; United Nations; Academy of Professional Family Mediators; Law Review CLE; Bridge the Gap CLE; Marino Legal CLE; Marino Bar Exam; Association of Divorce Financial Planners; Board of Education; St. Luke's Hospital; Jewish Board of Family and Children's Services; Los Niños Young Child Conference; Ameriprise Financial; Lawlineinfo; Parent to Parent of New York State; AXA; AFCC; Forensic and Family Law Training Program; Fathers Forum, National Organization for Women

EDUCATION

• New York Law School, Cum Laude JD 1985; Graduated number 1 in all civil litigation courses • London School of Economics • Bennington College Justice Deborah A. Kaplan was recently appointed Statewide Coordinating Judge for Family Violence Cases. Her office, the Office of the Statewide Coordinating Judge for Family Violence Cases (OFVC), works collaboratively with the state’s administrative judges and judges and staff who handle domestic violence and integrated domestic violence matters statewide with the goals of refining practices and promoting better and more consistent outcomes in matters involving family violence, encouraging continuing innovation and increasing the breadth and depth of support for the courts. Another related and critically important component of the OFVC is developing programs, protocols and procedures to improve how the court system addresses the growing number of cases involving the state’s older population, including allegations of elder abuse both in the civil and criminal context. The OFVC also houses the New York State Judicial Committee on Elder Justice which is a collaboration between the court system, non-profit service providers, government agencies, academics, mediators, social workers, law enforcement, prosecutors, legal services attorneys and other members of the bar. In collaboration with these community partners, the OFVC is working to ensure that all court personnel are aware of and responsive to the needs of older litigants and the particular challenges they may face. Justice Kaplan is an elected Justice of the Supreme Court and has presided over a Matrimonial Part for the past eight years. She has been a judge for 15 years. In addition to her new statewide position, she continues to maintain a matrimonial caseload. She has been a judge for fourteen years. Judge Kaplan currently co- chairs the Supreme Court Gender Fairness Committee and serves on the New York State Judicial Advisory Counsel and the Women in the Courts Committee. She is a past president of the Women’s Bar Association of the State of New York. Judge Kaplan received her undergraduate degree from SUNY Albany and her JD from St. John's University School of Law.

HON. JUDITH J. GISCHE

Biographical Outline

Justice Judith J. Gische was born in Queens, New York in 1956. In 1977 she received her undergraduate degree with honors from the State University of New York at Buffalo in 1977. She went on to receive her law degree from SUNY Buffalo in 1980.

Justice Gische was elected to the Civil Court in 1994 and reelected in 2004. She was appointed an acting Supreme Court Justice in 1997. She was elected to the Supreme Court for a term beginning 2009. She presided over dedicated matrimonial parts in both the Bronx and New York County for seven years. For eight years she presided over an IAS Civil Part in New York County.

In October 2012 Justice Gische was appointed and presently serves as an Associate Justice in the New York State Appellate Division, First Judicial Department.

Prior to her election to the bench, Justice Gische was a Judicial Clerk in the Appellate Division, Third Department from 1980 to 1982 and a senior attorney at Richenthal, Abrams & Moss from 1982 to 1990. From 1990 to 1993, she served as a Judge in the Housing Part of the Civil Court of the City of New York in Brooklyn.

Justice Gische is a member of the New York County Lawyers Association. She has been a member of the Judicial Section since 2012 and is currently its chair. She is also a member of the New York State Bar Association, as well as the Association of the Bar of the City of New York, where she has served on a various committees. Additionally, Justice Gische is a member of the Women’s Bar Association of New York and serves as a member of its Board of Directors. She serves on the Board of the New York Chapter of the Association of Family & Conciliation Courts. She is also a member of the New York Association of Women Judges.

Justice Gische was an Adjunct Professor for ten years at New York Law School and has been a featured lecturer on numerous occasions at bar and other professional associations. She serves on the Dean’s Advisory Committee at her alma mater, SUNY Buffalo Law School. She has published a number of articles on housing, custody and guardianship issues. She is a co-author of the current version of the Judges Bench Book.

updated 12/10/15 SHORT BIO

Ann Pinciss Berman has been practicing Trusts and Estates and Guardianship law since 1991. She has served as Counsel to the Petitioner, Attorney for the AIP, Court Evaluator, Guardian and counsel to the Guardian in many proceedings as well as a Guardian ad Litem in Surrogate’s Court. She has been a Mentor Attorney for the New York Law School Elder Law Clinic since its inception in 2005. She was a member of the NYC Bar Committee on Legal Problems of the Aging for two separate terms of 3 years each. She is a member of the NYS Bar Association Elder Law Committee and the National Association of Elder Law Attorneys. She also serves as an Arbitrator in Small Claims Court and for FINRA, the regulatory agency for the New York Stock Exchange and NASD, and has served as a Mediator in the Southern District Court in labor and Section 1983 cases. Lauren Behrman, PhD

Lauren Behrman earned her Ph.D. in Clinical Psychology and has been in private practice since 1985. She completed Postdoctoral Training in Child, Adolescent and Family Psychoanalytic Psychotherapy at the Postgraduate Center for Mental Health in Manhattan in 1990 and has considerable professional experience in treating children and families of divorce. She has evaluated and treated children and families since 1976 at Schneider Children's Hospital of Long Island Jewish-Hillside Medical Center, Nassau Bureau of Cooperative Educational Services, and was Chief Psychologist at the Child Development Center of the Jewish Board of Family and Children's Services from 1985-1994. She has taught and supervised interns and doctoral candidates and was an adjunct professor in the graduate psychology departments at Long Island University, Yeshiva University and New York University.

Over the past 16 years, Dr. Behrman has focused on developing services for children and families in the process of divorce. She has taken numerous professional trainings in High-Conflict Co-parent Counseling, Parent Coordination, Interdisciplinary Collaborative Divorce Practice and Mediation. She has served as a Special Master in the Connecticut Regional Family Trial Courts.

In 2002, Dr. Behrman led an effort to create a New York Chapter of the Association of Family and Conciliation Courts (AFCC). Along with Hon. Evelyn Frazee, Dr. Behrman was the first co-president of AFCC-NY and was on the Board of Directors of AFCC-NY for 10 years, and returned to that Board in January 2016. She also served three terms as a board member of the New York Association of Collaborative Professionals (NYACP) and serves as a Neutral Process Facilitator, Child Specialist and Parent Coach on Interdisciplinary Divorce Teams helping families who are going through the Collaborative Divorce process, as well as a trainer in Basic Collaborative Divorce Practice, and a facilitator of collaborative support groups for professionals. Dr. Behrman has written numerous articles and chapters on various topics related to divorce. She guest lectures at St. John’s Law School and Pace Law School in Classes on Collaborative Divorce Practice and Alternative Dispute Resolution. Dr. Behrman has presented extensively at IACP, NYACP, FDMCGNY, and at APA on topics such as Hearing the Voices of Adult Children in Divorce, Bringing Stillness to Conflictual Conversations, Prenups and Postnups in the Collaborative Process and From Conflict to Acceptance: The Neurobiology of Healing After Divorce.

Dr. Behrman has a private practice in Manhattan, White Plains and Katonah, NY.