Dear Mr. Premack: My father got married several years after my mother died. His new wife was still married to another man in Thailand when she married dad. I suspect she (who now claims to be divorced from husband #1) wants to grab dad’s money and assets. My parents had a rather large estate that was partially placed in a trust for the children, but the children do not have a copy of trust. Also, we are unable to access dad (who has Parkinson’s) due to his new wife being a heavily guarded gate keeper. Dad at one time asked us to sign the trust over to him but when he found out it was irrevocable he stopped. How do we get a copy of the trust? – KSC
The most fundamental question is: what is the legal status of his new “wife”? Texas law states that it is policy to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void. It goes on to state that when two or more marriages of a person to different spouses are alleged – like the situation with your father’s new wife – the most recent marriage is presumed to be valid until the prior marriage is proven to be valid.
If you can find proof that she was married at the time that she married your father, then two things happen.
First, his marriage could be declared void by a court with proper jurisdiction. Under the Texas Family Code, a marriage is void if either party is married to someone else at that time, and that prior marriage was not legally dissolved before the new marriage began.
Second, she could be charged with criminal bigamy. Under the Texas Penal Code, it is a crime, while married, to marry another person. Your father could also be in criminal trouble if he understood that she was married to someone else yet consented to marry her (unless he believed she was divorced already). This is a felony crime, so it should be taken very seriously.
For either of those outcomes, you’ll need solid legal evidence. If her first marriage had been in Texas, you could obtain records from the county clerk. There would be a marriage license establishing the date the marriage began, and there would be a divorce decree establishing the date the marriage ended. Since she was married (and maybe divorced) in Thailand, you may have a more difficult time obtaining the equivalent records.
If you find proof and your father wants to take action, he can file suit in the District Court to have the marriage voided. Clearly that would end her reign as guard and gatekeeper. If your father’s Parkinson’s causes him to be unable or unwilling to take action then your only choice may be to file in the local Probate Court to become his Guardian. To do so, you must allege and prove that, due to his physical or mental condition, he is substantially unable to provide food, clothing, or shelter for himself, to care for the his own physical health, or to manage his own financial affairs.
He may not want you to become his Guardian. He may allege to the court that he is fully capable (it is your burden to prove he has lost capacity). He may allege that he has made other legal plans that take effect if he is incapacitated (and thus does not need a Guardian). His “wife” certainly won’t want you to become his Guardian. She might try to become his Guardian herself (if they cannot get the whole proceeding dismissed). At that point, you will have to allege that she is not qualified to be Guardian due to the conflict over her marital status.
The court will then hear the evidence and try to make a determination that is in your father’s best interests. If you are ultimately appointed to be his Guardian, you can act on his behalf to void the marriage and to protect your father from any fraud or exploitation this “wife” may be planning. You will also be able to see his legal documents, including the trust that you want to review.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, April 22, 2011