Dear Quentin,
I was with my significant other for almost 7 years. While he was separated from his wife, they never divorced. It was due to financial reasons.
Because of his difficult relationship with his wife I was made his health-care surrogate.
Last September, he underwent cancer surgery, and realized that he hadn’t set anything up for me. After he recovered he set up a Totten trust, with approximately $ 50,000 thousand in it. We live in Florida.
In January, he became ill, had another surgery and was discharged to a rehab hospital on Feb. 12. Two days prior to discharge he had a fight with his wife and daughter. He was so angry that he transferred a large sum (more than $ 250,000) into the account that he had set up for me.
I was unaware of this transfer until the beginning of March, when he was readmitted to the hospital.
“ ‘I never asked for more, or forced his hand in any way. I have not acknowledged to the family that I know of the account.’ ”
During this time, due to pain and physical issues (he had delirium and was deemed unable to make health-care decisions), I had to make the decisions. They were not able to diagnose him, and he was sent to hospice where he passed away this week.
During this time, due to pain and physical issues (he had delirium and was deemed unable to make health-care decisions), I had to make the decisions. They were not able to diagnose him, and he was sent to hospice where he passed away this week.
As a result, he never had an opportunity to rethink the monetary transfer or execute one.
During this time his wife has been vindictive, mean and petty, refusing to pay for an ambulance to the hospice, refusing to provide funeral information to the hospice center. She has done many other nasty things and made unkind comments to me.
My question is this: Can she contest the account through probate? Aside from knowing he had set up an account, I never asked for more, or forced his hand in any way. I have not acknowledged to the family that I know of the account. These monies are only a small part of his estate.
To be honest, I could use the funds to replenish money I have spent, and of course use it for my own retirement. I also had much additional emotional stress caused by the wife and daughter. That said, I remain open to returning the funds that were in his daughter’s account.
Girlfriend of 7 Years
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Dear Balance,
People do not often act rationally when they are grieving. And you are all grieving, in different ways and, perhaps, for different reasons. Firstly, this sounds like a terrible ordeal, and I’m sorry that your partner passed away during such a stressful time, and that you all had to go through this. It could not have been easy for you, or his daughter or estranged wife, given that they were on such bad terms when he passed away.
Like you, they met and fell in love. At some point, they too believed they would spend the rest of their lives together. That’s worth remembering at times like this. It will help you understand that pain she is going through and, I hope, forgive her for her behavior. As with all such actions, they rarely have anything to do with you.
It’s always possible that someone will sue if they feel disregarded, dismissed or disrespected. The success of such a lawsuit would likely depend on the trajectory of your partner’s health, given that he did suffer delirium during his medical crisis. At the same time, he did manage to have some knock-out fights with his estranged wife, and vice versa, so it may or may not be hard to argue that he has a vulnerable mental state when they were at odds over so many issues, and attempting to hash them out.
Either way, you appear to approach the issue of the trust with some degree of equanimity, if not the costs of the funeral and ambulance. My advice is to do your darnedest to apply the same spirit of acceptance to all of the above.
“ ‘Apply the same spirit of acceptance to the trust as to the ambulance and funeral costs.’ ”
“A Totten trust is essentially a ‘pay on death’ (POD) designation for a bank account, and is frequently used as an alternative to drafting a will or trust,” says Benjamin Trujillo, senior adviser at Moneta. “In Florida, a POD is considered an inter vivos (or lifetime) gift, which grants the probate court jurisdiction if his estate claims the gift was not valid. In this particular case, the decedent’s spouse would likely try to claim the gift was invalid on the grounds that you exercised ‘undue influence’ to obtain it.”
“In claiming undue influence in this case, his spouse would assert that you manipulated him into making the POD which he would not have otherwise done on his own. If the court agrees with her, the POD could be undone,” he adds.
But Trujillo says there may be some red flags for you to be aware of. “If his transfer of funds from his daughter’s account was impermissible or illegal, it is likely that those funds would be returned to her account. If he had the authority to access those funds for any reason, then you may be able to keep them. As for the other funds, if you were unaware that they had been transferred or that he intended to transfer them, then it would be hard to demonstrate undue influence on your part.”
He also suggests checking with the bank to see if the account has been put in your name. “Expediting that process improves your bargaining position considerably. You should consult with a local attorney to determine your next steps.”
Again, my condolences to you. I hope you find a way to move on with all of your good memories intact, regardless of the outcome.
You can email The Moneyist with any financial and ethical questions at qfottrell@marketwatch.com.
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