Herbie and Nicole Wertheim were married for more than half a century. Now Nicole claims in a lawsuit that her optometrist-turned-investor ex forged her signature, made foundation pledges without her approval and removed her access to $250 million in charitable funds.
By Kerry A. Dolan, Forbes Staff
The 2023 Prostate Cancer Foundation’s gala dinner in Palm Beach was a high profile affair. Held at the Cox Science Center and Aquarium with a performance by The Beach Boys, the event attracted at least half a dozen billionaires including Mike Milken, Jeff Greene and Bill Koch. Also among them was Florida billionaire Herbert “Herbie” Wertheim, wearing a big grin and his signature red fedora and matching sneakers. He posed in a series of photos, including one in front of a surf board, with Alicia Dahill, whose bio lists her as working in global event management. Nowhere to be seen at that evening’s soiree: Nicole Wertheim, Herbie’s wife of more than five decades.
After what appeared to be a public display of infidelity by Herbie, Nicole filed for divorce in July 2023. A judge granted the Wertheims a divorce in October, but a court battle over the division of what Forbes estimates is a $4.5 billion fortune is still ongoing; a trial on splitting the assets is set for late March. Florida is an equitable distribution state, which typically means couples split assets equally in a divorce.
The more novel case is one that Nicole Wertheim filed last July, also in Miami-Dade County Court. She alleges in her suit that Herbie effectively forged her signature to approve the appointment of Herbie’s brother Ray Wertheim as a director of their Dr. Herbert and Nicole Wertheim Family Foundation; then apparently with Ray’s support, Herbie misappropriated all $250 million of the foundation’s assets and put them under his sole control in a Charles Schwab account.
In a court filing, a lawyer for Herbie disputed Nicole’s allegations that Herbie “misappropriated …tens of millions of dollars of the Foundation’s assets ..for his own personal use,” since the assets will be donated to nonprofit groups. But he does admit that his client opened a Schwab account over which Nicole doesn’t have signature power–because of a separate matter in which Nicole, while acting as a fiduciary of Herbie’s personal trust, used her authority to take $3.5 million out of that trust for herself (the date this happened was not disclosed). The filing doesn’t establish what Herbie’s trust has to do with the dispute over the foundation assets.
Christina Echeverri, a lawyer in Florida with Echeverri Law Group who specializes in family disputes and is not involved with this case, speculates that Herbie’s lawyer included the mention of the non-related trust because “they are trying to minimize his actions.”
Billionaire divorces involving nasty fights over the division of assets are legion. This ongoing lawsuit between Nicole and Herbie Wertheim shines a light on a different form of wealthy divorcing-couple power struggle: control over the assets in their charitable foundation.
Why wage such a battle over money earmarked for charity? “Philanthropy gives those in control power,” says Al Cantor, an independent philanthropy consultant who’s not involved in the case. Big donors get their wishes met when giving away large sums. Ceding control of even some charitable assets means giving up a bit of that power. It probably didn’t help his case that Herbie continued to be photographed at swank Palm Beach and Hamptons charity events with Dahill by his side; he recently acknowledged to Forbes that she is his girlfriend “and maybe more.”
Dr. Herbie, as his friends call him, is a chatty 85-year-old optometrist and businessman who over a period of decades astutely put profits from BPI, a company he founded that makes optical tints, into a portfolio of successful stocks–from Microsoft and Apple to Amazon and aerospace firm Heico. In 2019, Forbes published an article about Herbie, calling him “the most successful investor you’ve never heard of,” worth an estimated $2.3 billion at the time. Since then, his investments have greatly increased in value.
He married Nicole–now 81, a French citizen and a resident of the Bahamas–in 1969. “Herbie and I had nothing when we started, and together over 55 years we built a family, a business, and a charitable family foundation that has accomplished many wonderful things,” Nicole said in a statement via her lawyer. As the couple grew prosperous, they acquired seven homes in locales from south Florida to Vail, Colorado to Rancho Santa Fe, California—and three apartments on a luxury residential cruise ship, The World, where Nicole resides. Last November, Herbie added to the batch of homes, reportedly spending $38 million on a 5,800-square-foot waterfront mansion in West Palm Beach. Altogether the homes and apartments are worth more than $130 million.
The Wertheims joined the Giving Pledge in 2016, promising to donate at least half of their fortune to charitable causes. The couple announced a number of large gifts–ranging from $10 million to $50 million–over the past dozen years. The first eight-figure pledge was in 2013: $10 million to Florida International University for its nursing program. In 2018, the University of California San Diego shared news of a $25 million promise from the Wertheims toward a new school of public health. And in 2021, the Wertheims’ foundation pledged $50 million to the University of California Berkeley’s School of Optometry. Nicole withdrew her name from the Giving Pledge amid the couple’s divorce proceedings; she didn’t comment on why, but in her statement shared by her lawyer, she describes herself as a private person.
When the divorce was filed, Nicole took issue with some of the pledges. Her lawsuit alleges that Herbie promised large gifts to two universities without her consent, despite the fact that she is a trustee of the foundation and should have a say in such decisions. Nicole was successful in convincing Florida State University to decline a $50 million gift to its business school that Herbie promised in April 2024, per the court filing. But she wasn’t able to halt a $100 million pledge to the University of Florida for biomedical research that Herbie made in October 2022. Before offering that gift, Herbie did not consult Nicole or their daughter Vanessa, who was a foundation trustee at the time, per her lawsuit. Herbie’s lawyer responded with a filing alleging that Nicole had texted Herbie in June 2023–a month before she filed for divorce–that “You are the one with the vision and the one to make all the decisions” (though it’s not clear what that text is in response to). According to Herbie’s lawyer, Charles Schwab has put a hold on the Wertheim foundation’s account because of the ongoing legal dispute. To help meet his pledge, Herbie has given $20 million to the University of Florida from his personal funds, while the foundation has contributed $10 million, per the court filing. Spokespeople for Florida State University and the University of Florida did not respond to requests for comment on the donations.
In the past, Herbie had been the only decision-maker on a pledge, his lawyer asserted. Herbie was the sole signatory for a $10 million gift agreement more than a decade ago between the Wertheims’ foundation and Florida International University (for the school’s Nicole Wertheim College of Nursing and Health Sciences). It has only been since the divorce was filed that Nicole has challenged Herbie’s decisions on foundation gifts, his lawyer asserted in a court filing. In addition, the filing alleges that because Nicole lives on The World Residences at Sea, a private cruise ship that travels around the globe, she had earlier provided “a computer facsimile of her signature to be affixed if and when needed.”
Nicole’s lawyer lays out a different version of events in a court filing. Two days after Nicole filed for divorce in July 2023, Herbie had his longtime office manager instruct his IT manager to lift Nicole’s electronic signature from an old document and affix it to the minutes of a foundation board meeting approving Herbie’s brother Ray Wertheim as a new trustee, to replace Herbie and Nicole’s daughter Vanessa, who had resigned from the foundation. (Florida law requires that foundations have a minimum of three trustees or directors.) In a deposition, the IT manager said he did not know about the divorce when this electronic signature-affixing happened; had he known, he would have asked for Nicole’s permission before doing so.
In essence, things were fine with the foundation until Nicole filed for divorce, and the control over the foundation’s assets is part of a larger struggle between Herbie and Nicole.
In a phone interview, Herbie tells Forbes, “I hope in time we’ll be able to meet the [foundation’s] obligations .. and we’re able to come to some resolution in the family.” But he doesn’t sound like a man who really wants resolution. He pins the foundation troubles on one of his two daughters. “The disagreement has to do with my daughter Vanessa …. she resigned from the foundation after the divorce was filed,” he says. In response, Vanessa Wertheim says via email, “I stepped away from my position on the foundation on the date my father was served by my mother with the divorce in order to allow my parents to resolve foundation matters without my involvement. …Needless to say, my stepping down in no way justifies the troubling actions that followed.”
When asked if he’d be willing to split the foundation’s assets in half with his ex-wife so that each could have their own foundation, Herbie claims that he had suggested that solution, but that Nicole had refused. Nicole’s lawyer, Bruce Weil of law firm Boies Schiller Flexner, refutes that claim, saying that Dr. Wertheim never made such an offer.
Herbie says that he’s already gone ahead and set up his own foundation, the Dr. Herbert Wertheim Humanitarian Foundation, with a $50 million loan from his trust. “Dr. Herbie is passionate about his Giving Pledge,” says Dennis Richard, Herbie’s lawyer. “All he wants to do with this money is figure out how to dispose of his billions in accordance with the mission of the foundation.”
Despite this claim and the Wertheims’ big pledges, Herbie has a long way to go in his stated effort to give away half his fortune. As of September 2023 the Wertheims’ foundation had $157 million in net assets, yet paid out grants of just $1 million over the prior 12 months, per its tax return. Over the previous decade, the couple’s foundation gave away about $29 million, per a Forbes review of its filings. That’s a significant sum for a charitable foundation, but not when your aim is to part with $2.2 billion or more. Of course, Herbie might have less to give once assets are divided up later this year.
“Whatever [number] you have … we’ve given away an awful lot of funds,” Herbie says in response to Forbes’ calculations. “We have met our obligations, whatever they have been.” But then he reveals a bit more about his motivations, which appear to contradict his intentions to give his fortune away: “People give to foundations to offset liabilities and taxes. We want to preserve the corpus of the foundation”—meaning the amount he’s donated to it.
Nicole, in the statement sent via her lawyer, says, “Just as I decided to stand up for myself in my personal life, I also intend to protect a foundation that is very important to me and my family. At the end of the day, I simply want to be treated fairly and respectfully–nothing more. It is my strong hope and belief that we can resolve our differences so that we can each move on with our lives and enjoy the years that we have left.”
Read the full article here
