Q: After my mother died four years ago, dad was just not the same person. He lived alone, becoming almost hermit-like. My brother and sisters all agreed that he seemed to be slipping mentally, but we couldn’t get him to a doctor. His neighbors expressed concern, and some even took him meals every now and then.

That’s why we were shocked to learn from his next-door neighbor that a young woman had moved in with him. When we went to visit dad, she answered for him and told us that they had married. She is about half his age (he is 82 and she is 45). Then, according to the neighbors, two males moved in with dad, supposedly her children. From the time this woman came on the scene, it was never convenient for any of us to visit dad. It was like he was held hostage. We went to a lawyer and began a guardianship suit, and finally my brother was appointed. By then, dad was in very bad shape physically and mentally. He had lost more than 50 pounds, and we had to put him in a nursing home. At the lawyer’s suggestion, my brother sued to void this “marriage” because the doctors who were treating dad told us that his condition was so bad that he could not have understood what he was doing when he got married. The doctors also said that he couldn’t sign a power of attorney or will. Dad died in early July. A will he signed last December leaves everything to his “wife” and her children, and excludes all of us. Can we stop her from getting his property?

A: First of all, whether a marriage is legal is a question that, in some circumstances, can be raised after a spouse’s death.

Because property and inheritance rights are based on your father’s relationship (or lack of relationship) with the woman in question, whether the marriage was, in fact, a marriage is obviously relevant to the ultimate distribution of his assets after his death.

The specific answer to your question must be provided by your lawyer and the courts of your state, but generally speaking, if your father was unable (as the doctors apparently state) to enter into a contract because of his inability to consent or because he was vulnerable and unduly influenced, the “marriage” contract could have been voided by a court during his life so long as evidence is provided proving his condition.

Evidence of your father’s vulnerability and whether he was subjected to duress and undue influence is not only relevant to the marriage question, but also to whether he had the capacity to make his will last December. If, as you say, your father was prevented from seeing his family and was surrounded daily by a woman half his age and two of her children, chances are that he was unduly influenced.

That he was elderly, possibly suffered from debilitating dementia, and was not allowed access to his family are clearly ripe issues for judicial inquiry.

It’s important to note that there is no meaningful process in any state that prescreens individuals for dementia or any other condition that would affect their ability to enter a marriage contract before they are granted a license to marry. A 24-hour waiting period between the time a marriage license is applied for and the ceremony itself does nothing to help avoid the type of situation you describe. It seems to us that because there are a growing number of seniors who remarry, state legislatures should make some effort to deal with situations like yours, which usually ends up in litigation. At the very least, the issuing officer should do more than just allow folks to sign on the dotted line when the appearance of lack of capacity or duress is present.

– Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.