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Dear Moneyist,
My father has dementia. He married his second wife four years ago. He did not make a last will and testament, and cannot legally make one now because of his dementia. He is not expected to live much longer because of heart problems. She is 91 he is 93. My sister and I are concerned about what will happen to his estate after he dies.
If he passes away how much rights does she have over his property and money, given that they have only being married four years? She says she is in charge of everything and we have no rights to anything. Is this true? She has included her friends in helping her with decisions made about dad and not us. I’m lost and don’t know what to do.
Marcia M. in South Carolina
Dear Marcia,
If you believe your stepmother is not acting in the best interests of your father, you should seek legal advice. It does not appear that there is any financial or elder abuse happening here — at least from what you say in your letter — so you may wish to wait until your father passes away to take action. In that case, you could contest your stepmother as administrator of your father’s estate.
The probate court appoints an administrator; usually, the deceased’s spouse or his/her children. You could petition the court to appoint your or your sister, or an independent third party. In most states, you have a limited amount of time to act — typically, 30 days — and it must be done in writing. You would need to provide just cause: dishonesty, incapacity. Personality clashes don’t count.
In South Carolina, the estate is divided between the spouse and surviving children if there is no will. Nosal & Jeter, a law firm in Fort Mill, S.C., says intestate laws don’t apply to life insurance proceeds, funds in an IRA, 401(k) or any other retirement account, or property they own together or property in which your stepmother has the right of survivorship.
But there’s more. South Carolina changed its intestate succession laws in 2013, according to McGuireWoods Consulting: “North Carolina modernized its elective share by basing the surviving spouse’s elective share on the length of the marriage and not the fact of a previous marriage or the number of children of the decedent.” You can read more here.
Ultimately, your stepmother may be left with fewer assets than she currently anticipates. I hope you can resolve this situation and all ensure that your father is comfortable with the time he has left.
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