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Our courts have seen an increase in lawsuits involving elder exploitation over approximately the last 15 years. This is due in part to the fact that the population is living longer and the elderly are increasingly relying upon caretakers. There are myriad ways in which unscrupulous individuals take advantage of older persons, but not all of them were anticipated by the Legislature. We are well familiar with the problem, having spent more than a decade litigating Matter of Berk—a case concerning a predatory marriage.


In Berk, the decedent purportedly entered into a marriage with his live-in caretaker one year before his death. At the time, the decedent was 99 years old, wheelchair bound, hard of hearing and had recently been diagnosed with dementia. The caretaker first revealed the marriage to the decedent’s sons, the executors of his estate, in a car on the way to the funeral home. She later served them with a notice of the exercise of her right to an elective share of the decedent’s estate and, when the co-executors rejected it, commenced a proceeding to determine her inheritance rights.

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