Dear Mr. Premack: Mom remarried twelve years ago after my father's death. Five years ago, her new husband was diagnosed with dementia, probably Alzheimer’s. They both came to visit me in Virginia recently, and I realized mom has memory problems (she could not dress herself or find the bathroom). I thought she was taking care of her husband, but he was trying to take care of her. His daughter agreed to care for him in Dallas while I care for mom here. Mom’s monthly income is only about $750, but he has military retirement and income from gas wells. His daughter says his money will be her inheritance and that mom is not entitled to any of it. She wants mom to divorce him. Can mom get support from him without getting divorced? She needs the money for her ongoing care. SJC

Your mother’s situation raises a variety of complex legal issues. Unless they entered into a prenuptial agreement that overrides state law, while they are married Texas law requires the spouses to support each other. They are obligated to pay for each other’s food, shelter and health care needs. Thus, staying married may be in your mother’s best interest.

Her husband can seek divorce, but it must be his choice; his daughter cannot make the decision for him. With Alzheimer’s, he may not be able to form the necessary legal intent to begin divorce. If his daughter threatens to push him into divorce, your mother can counter by claiming he is legally incapacitated.

If your mother is legally competent, she could file with the Dallas court to prove her husband is incapacitated and to become his Guardian. If she does so, his daughter will likely tell the court that she, not your mother, should be Guardian. Texas law gives priority to your mother, but if his daughter can establish your mother’s memory problems would impact her ability to care for him, the court might agree to appoint his daughter as his Guardian.

If divorce is sought by the Guardian, the court will try to enforce any prenuptial agreement regarding division of assets and ongoing support. If they do not have a prenup (and frankly, most second marriages are unwisely begun without one) then 1) separate property will be set aside to its owner; 2) community property will be divided equitably, and 3) ongoing support will cease unless the parties agree to contractual alimony, although part of his military pension may be treated as community property and could be awarded to her.

Your mother should consult with a Virginia attorney to determine whether she may gain any advantage by establishing legal residency in Virginia. If she’s not competent, you may be able to represent her if she already named you as Agent in her durable power of attorney or if you seek Guardianship over her. If that is possible, find out if filing for divorce in Virginia before he files in Texas would give her a better financial outcome.

His daughter has claimed that all of her father’s money is "her inheritance". If there is no divorce, her father’s decision (in his existing Will) determines the identity of his heirs. He can legally control his separate property and his half of any community property, and it goes to whomever he chose. But if they do divorce, your mother gets no inheritance from him.