Posts Tagged ‘annulment’

Court Annuls Marriage After Death of “Spouse”

JANUARY 20, 2014 VOLUME 21 NUMBER 3

Cynthia Madsen (not her real name) was, according to her doctor, already showing signs of dementia in 2007. In fact, her doctor wrote that she was not able to manage her own financial affairs. By mid-2009, her condition had worsened; her doctor wrote that she could not make decisions in her own best interests, and that her children should seek a guardianship because there was danger that someone might try to take advantage of her.

No guardianship or conservatorship proceeding was initiated, though — Cynthia continued to live at home with the assistance of a caregiver and a live-in friend named Patrick. In 2011 — almost two years after her doctor reported that Cynthia could make no decisions on her own — Patrick asked Cynthia’s minister to officiate as he and Cynthia got married. The minister refused, saying he did not believe Cynthia was competent to make such a life decision.

Things began to accelerate a few months later. Cynthia was admitted to the hospital . Cynthia’s daughter filed a guardianship and conservatorship proceeding. In the course of that proceeding, a court-appointed investigator interviewed Cynthia and wrote that she was incapacitated; the investigator recommended that a full guardian and conservator should be appointed. The next day, Patrick and Cynthia were married. Two days after that, Cynthia’s daughter was appointed as her temporary guardian and conservator, and moved her to a care facility.

As guardian and conservator, Cynthia’s daughter filed a petition to dissolve the marriage or, in the alternative, to annul it. The difference is important — dissolution of the marriage (what most of us still refer to as “divorce,” though the terminology changed decades ago) recognizes that the married couple are unhappy in the marriage, or that at least one of them believes the marriage is irretrievably broken. Annulment, on the other hand, recognizes that the marriage was never valid in the first place.

While the dissolution/annulment case was pending, Cynthia died. The divorce court promptly dismissed the dissolution part of the petition — a divorce can not be granted after the death of one spouse, since the marriage is, in a sense, dissolved by the death. But the annulment proceeding continued. Ultimately, the court ruled that Cynthia was incompetent to enter into a marriage contract, and so the marriage never was effective. The annulment was granted.

The Arizona Court of Appeals upheld the annulment. It is irrelevant, ruled the judges, that Patrick claimed that neither he nor Cynthia was unhappy in the marriage. It is irrelevant that Cynthia died while the case was pending. In this case, there was clear evidence that Cynthia did not understand the nature and significance of the marriage ceremony, and the trial judge’s determination that there was no effective marriage was allowed to stand. Savittieri v. Williams, January 2, 2014.

At Elder Law Issues we have written about this question before. In October of last year we reported on a Wisconsin case in which an annulment proceeding was allowed to continue after the death of the incompetent “spouse.” At the time we noted that we had not seen Arizona cases with the same facts, but we predicted that the result would likely be the same in Arizona. The Savittieri case shows that we predicted correctly.

It is worth noting that the result in this new Arizona case did not depend on the fact that a guardian and conservator was appointed almost immediately after the “marriage” ceremony. The fact of guardianship and conservatorship, by themselves, would probably not be enough to invalidate the marriage. As we have previously noted (this time citing a Missouri case with illustrative facts), the question is not whether a guardian or conservator was, or could be, appointed — it is whether the person understood the nature of the marriage and had mental capacity to enter into the marital contract itself. Cynthia did not — the guardianship and conservatorship were based on that incapacity, but did not necessarily prove it.

Decedent’s Family Permitted to Challenge Validity of Marriage

OCTOBER 7, 2013 VOLUME 20 NUMBER 38

Though we do not handle divorce cases at Fleming & Curti, PLC, we do find ourselves dealing with divorce, annulment, child support and spousal maintenance issues from time to time. One common question we see involves late-life marriages between a (sometimes) confused senior and a (sometimes, but not always) younger suitor. The questions sometimes come from the senior himself or herself (“I love my fiance, but can my children do anything to challenge this marriage?”) and sometimes from other family members (“Dad wants to marry his caretaker, but we children think she’s just taking advantage of a demented older man for his money. What can we do about it?”).

It is extremely difficult to generalize about these issues, since they are very, very fact dependent. When lawyers say “fact dependent,” incidentally, they usually mean that they anticipate that testimony will be conflicting, that litigants will hear only the part of the testimony that supports their own position, and that the cost, complexity and time spent on litigating the “fact dependent” questions will be substantial, perhaps even prohibitively so.

There is one recurring legal question, though. If either spouse is incompetent (setting aside the definition of that very flexible word for a moment) at the time of a marriage, that marriage may be invalid. But the incompetent spouse is usually not the one challenging the validity of the marriage, and family members who do challenge it are often trying to set aside the marriage after the death of the incompetent spouse. In general terms, only spouses are permitted to litigate divorce, annulment and support questions, and the availability of divorce proceedings usually ends with the death of either spouse. So can family members challenge the validity of a marriage after the death of an allegedly incompetent spouse?

According to the Wisconsin Supreme Court, the answer is “yes.” Of course, Wisconsin cases do not carry direct authority in Arizona (or other states), but the rationale may be persuasive — so it’s worth describing the case even for an Arizona audience.

Naomi Latigue (not her real name) had been married for thirty years when her husband Larry died in 2001. They had not had any children together, but Larry had three children from his first marriage. Naomi had signed a will leaving her entire estate to Larry and, if he died before her, to his children — as if they were her own children (though she had never adopted them).

Several years after Larry’s death, Naomi suffered a stroke. It left her deeply affected — for purposes of the later Supreme Court decision, we can assume that her competence was marginal, at best. After what was probably another stroke in 2008, she was admitted to the hospital and then, two weeks later, discharged to a nursing home.

While she was at the nursing home, her live-in companion (of about five years — predating her first stroke) checked her out twice — first to get a marriage license and then, a week later, to get married before a local judge. He did not tell her family members about the plan or the fact of the marriage (they learned about it from her insurance carrier when making claims a few weeks later). Her step-daughter filed a guardianship petition and a temporary guardian of the person and of the estate (what we in Arizona would call a temporary conservator) was appointed. Naomi died a few days later, before the guardianship petition was resolved.

Wisconsin, like most states (perhaps all states) provides that a spouse who marries the decedent after their will is written is entitled to some share of the probate estate. Naomi’s new husband filed a probate petition, alleging that her original will could not be found but that in any event he was entitled to a share, and to appointment as personal representative. Naomi’s step-daughter filed a competing petition, seeking probate of a copy of Naomi’s will and arguing that the marriage was invalid.

The probate court considered arguments of the parties and ultimately ruled that the only way to challenge the validity of a marriage is by filing a petition to have it annulled. By state law (the same rule applies in Arizona) only the affected spouses can prosecute an annulment proceeding, and so there was no mechanism for Naomi’s step-daughter to challenge the validity of the will. Accordingly, Naomi’s husband was appointed as personal representative and awarded a share of her estate.

The Wisconsin Supreme Court reversed that holding, and remanded the case back to the probate court for a determination about whether the marriage was valid. It is true, wrote the Justices, that spouses can only challenge the validity of their marriage by filing an annulment petition, but that does not prevent a probate court from determining whether Naomi was competent to enter into the marriage. If she was not, said the court, the marriage was void from the moment it was entered into, and Naomi’s heirs could make that argument in the probate court. Estate of Laubenheimer, July 16, 2013.

Would the same principles apply in Arizona? Probably. Arizona does have one case with somewhat analogous facts and a similar result. In Estate of Rodriguez, a 2007 Arizona Court of Appeals case, the decedent had referred to herself as married and had signed a will leaving the bulk of her estate to her “husband.” After her death it developed that he had still been married to his first wife at the time of his marriage to the decedent, and so her family challenged the validity of the marriage. He argued that the probate court had no jurisdiction to void the marriage, since the couple had not resided in Arizona at the time of her death; the Court of Appeals, in language similar to the Wisconsin Supreme Court’s opinion in Naomi’s case, ruled that the probate proceeding was not an annulment petition but a separate challenge to a void marriage.

Divorced, Separated or Filing Soon? Think About Your Estate Plan

JULY 23, 2012 VOLUME 19 NUMBER 28
We’re sorry to hear about your marriage breaking up, and we know you have a lot of other things on your mind. But could we get you to think about your estate plan for a moment? We suspect that in the process of getting divorced or separated, you haven’t given it any thought.

At Fleming & Curti, PLC, we have seen a number of cases where a separated or recently divorced spouse has died without having taken care of estate planning. If you have recently gotten divorced or legally separated, or if you or your spouse have recently filed, you should consider the effect of this major life change on your will, living trust, beneficiary designations and custody arrangements set up for your children. In fact, we wish you would think about it for a moment if you have ever gotten divorced — a number of the cases we have handled have involved someone who didn’t get around to making appropriate changes for years after the divorce. Here are some of the issues you should think about, and discuss with either your divorce lawyer or your estate planning attorney:

Default state law. In Arizona (and in some other states — but we don’t practice law in those states) there is a statute that says divorce causes your ex-spouse to be treated as if he or she died before you. So if your will leaves everything to your husband, and then you get divorced, he should be treated as having died, which means your will now leaves everything according to the alternate provisions you spelled out. Same thing for life insurance beneficiary designations — even joint tenancy titling in real estate. If you would like to read the Arizona law on divorce and estate planning, it is available online.

But don’t rely on that law. There are a number of problems with doing so, and they are mostly not things the legislature could even fix if they tackled the issues. For instance: what about a decree of legal separation? In Arizona, that is not a divorce — the spouses are still married. The law assumes that if they wanted to really sever all rights they might have in one another’s estates, they would have gotten divorced (or had the marriage annulled). Consequently, a decree of legal separation will not have the same effect.

What about people who want their ex-spouses to receive property even though they have gotten divorced? We do see this — fairly often, in fact. Because of the presumption that the divorce effectively changed the spouses’ estate plans, if you want to leave anything to an ex-spouse you would be well-advised to sign a new will (or trust) and make it clear that your divorce has not changed your wishes.

What about couples who are not yet divorced, but who are in the middle of filing? Perhaps they have even been involved in a protracted, bitter legal struggle — but until the divorce is final, they are not divorced for purposes of estate planning. So if you are in the process of getting divorced, you would be well advised to talk with your lawyer (either the divorce lawyer or your estate planning lawyer) about what you should do between now and the finalization of the divorce decree. But note: there is a related rule which kicks in automatically in every pending Arizona divorce proceeding. It prevents the spouses from making any transfers of property or changing ownership arrangements (you can read the automatic “preliminary injunction” online), so be very careful about how you change your estate plan. The more contested the proceeding, the more urgent the need to make the change — and the more dangerous it can be to do it. So talk to your lawyer(s).

Federal law. Some kinds of property are not governed by the Arizona law treating divorced spouses as having each died before the other. The most important illustration: benefits governed by ERISA, (known to its friends as the Employee Retirement Income Security Act of 1974). Even if your divorce decree says, for instance, “husband gives up all rights he may have in wife’s retirement account at XYZ, Inc.” it may not be effective. It is critically important that you make sure that (a) your divorce decree qualifies as a QDRO (a Qualified Domestic Relations Order) and that you have taken steps to formalize the change in beneficiaries and (b) you actually get a new beneficiary designation in place. Again and again we see long-divorced spouses who have never gotten around to changing the beneficiary on their work-sponsored insurance or retirement plans, and whose ex-spouses end up with the benefits.

Look at your decree — and show it to us. Suppose your divorce decree requires you to maintain life insurance payable to your kids. Fifteen years later, after a remarriage (and the birth of two more kids by your second spouse) you decide to update your estate plan. We tell you what changes we want you to make in your life insurance beneficiary designation. Do you think we need to know about your almost-forgotten divorce decree before actually making those changes? You bet we do — and you need to remember to look at it from time to time, too, if it contains any instructions which might continue to apply to you.

Custody of your children. Maybe you were in a bitter divorce, and you think your ex-spouse is really not a good parent. Can you provide that someone else gets custody of your children on your death?

Probably not. But that doesn’t mean that you shouldn’t make any provisions for guardianship. What if your ex-spouse dies before you, or chooses not to seek custody after your death? You should have a conversation with your estate planning attorney about guardianship, even if your expression of preference may not be effective. It might turn out to have been important.

You need new powers of attorney. Just as your ex-spouse ceases to be your heir after the divorce, he or she also loses the role as agent under both your financial and health care power of attorney (under Arizona law, at least). But that could mean that you haven’t named an agent at all — and the last thing you want is for your new spouse, or your brother or sister, to be fighting with your ex-spouse about whether the documents are valid. You need to sign new powers of attorney — in fact, we think it is even more important that you do that while the divorce is pending (since the automatic rules have not yet kicked in).

What about your joint revocable living trust? Oh, what a good question. This one often requires some close communication between your divorce and estate planning attorneys. You need to separate assets and estate plans, but you have to be careful not to violate that automatic preliminary injunction we talked about earlier. Get both attorneys talking to one another (and maybe your spouse’s divorce attorney, too) as early as possible. And if your joint trust is irrevocable (as it might be, for instance, if it holds life insurance), the problems can be even more difficult, and cooperation more important.

How are step-kids treated? Remarrying someone who brings children into the marriage? You need to talk with us about how to treat your step-children (and maybe other step-relatives). The legal system makes some assumptions about how you want your children treated; those same assumptions may not apply to step-children, and so you need to be especially careful — and specific — in order to get your wishes recognized.

That’s just a sampling of some of the estate planning issues we see in cases involving divorced — or divorcing — spouses. There are a lot more issues out there, and some of them are very complex. For us, the key is communication: you need to tell us about your marital history, and we need to let you know why that can be important.

Despite Guardianship, Ward May Have Capacity to Marry

MAY 2, 2011 VOLUME 18 NUMBER 16
We have written in previous installments about differing state laws regarding the ability of a guardian (of the person) or conservator (of the estate) to file a divorce proceeding “for” an incapacitated adult. The question that comes up more often from our clients is a little different, though. In its most direct form, it might be phrased like this: “if I get a guardianship over my demented mother, will that prevent her from getting married without my permission?”

The exact dimensions of the question, of course, vary with each asking. Sometimes there is familial anxiety about a late-life romance blooming in the assisted living facility or nursing home where a parent has been placed. Sometimes the concern is over a developmentally disabled 17-year-old about to acquire, at least theoretically, the legal right to make foolish decisions. Sometimes the question is focused on a particular dangerous suitor, and sometimes it is more generalized.

The short answer to the question: the mere fact of a guardianship probably will not prevent the ward from getting married, or the marriage from being determined to be valid. The level of capacity required to enter into a marriage agreement is not exactly the same as the level of capacity required to make one’s own placement or medical decisions — or even to enter into other kinds of contracts. But the facts underpinning the guardianship proceeding are likely to be the same facts utilized in any later challenge of the validity of a marriage.

Take the recent example of Christopher C. Oakley, who lives at Lamplight Village, an assisted-living facility in West Plains, Missouri. Mr. Oakley suffered a childhood traumatic brain injury in 1986, and has required supportive assistance with bathing, housekeeping and personal care ever since. His father was apparently appointed as guardian of his person in a Florida proceeding in 1995. A professional fiduciary was appointed as conservator of Mr. Oakley’s estate at the same time, and continues to manage the proceeds from settlement of a personal injury lawsuit filed in connection with the original accident.

As Mr. Oakley reached his early 20s he became involved with Melissa Warren, another resident of Lamplight Village. She, too, had a guardian and conservator — the Howell County, Missouri, Public Administrator was appointed to handle her finances, medical and placement decisions after the probate court determined that she was unable to do so herself.

In 2006 Mr. Oakley and Ms. Warren decided they wanted to get married. They each asked their respective guardians for permission, and both refused. They then had a friend drive them to a neighboring state, where they were married. Upon their return they began to live together in a shared apartment at Lamplight Village, and they identified themselves as a married couple.

The two guardians responded quite differently. The guardian for Ms. Warren (now Mrs. Oakley) did not initially approve, but sat down with the couple and discussed what they had done. The guardian decided that they really did want to get married, that they understood the emotional and financial meaning of their decision, and that the marriage should be allowed to stand. In fact, she told the judge, if the marriage was annulled she would intend to immediately file a petition to secure court approval for a new marriage.

Mr. Oakley’s guardian reacted to the news of the wedding by filing a petition to have the marriage annulled. He argued that his original Florida guardianship was based on a finding that his son was incapacitated, and that the marriage therefore was invalid in the first place. In testimony, he explained himself by asking, rhetorically: “what happens if he decides ten years from now that if somebody else — another girl comes into his life and it’s better and bigger and everything than what he had?” He also filed a Missouri guardianship proceeding, which was granted while the annulment proceeding was pending.

The judge hearing the annulment petition denied Mr. Oakley’s father the relief he sought. The fact of a Florida guardianship, reasoned the judge, did not prevent the ward from having the capacity to understand the meaning and effect of marriage. Neither did the fact that his intellectual functioning was well below “normal” intelligence, with an IQ estimated at about 70.

The Missouri Court of Appeals agreed, and allowed the marriage to stand. The burden of proving that Mr. Oakley lacked capacity to marry was on his guardian, ruled the appellate judges, and he had failed to carry that burden. The existence of a Florida guardianship was not adequately shown, and neither was the effect of that order. The evidence considered by the trial judge was sufficient to support his finding that Mr. Oakley, despite any guardianship order, understood the nature and effect of marriage well enough to enter into this most personal of contractual arrangements.

There are a number of other interesting side-issues involved in Mr. Oakley’s marriage annulment proceeding. At least, they are interesting to lawyers — everyone else might find them less bracing. One such issue: the lawyers, the trial judge and the appellate judges all agreed that Mr. Oakley’s capacity to marry should be assessed under the law of Arkansas, where the marriage took place, rather than the law of Missouri, where the couple lived and the legal action was filed. Meanwhile, Mr. Oakley’s father insisted that the law of Florida should govern the question of whether a ward automatically loses all capacity to marry upon the appointment of a guardian; that argument was lost, however, when the Missouri courts decided that he had not proven the existence of a Florida guardianship as required by Missouri law. In Re Marriage of Oakley, April 27, 2011.

Payments In Annulment Case End With Death of Ex-Husband

JULY 22, 2002 VOLUME 10, NUMBER 3

Late-life marriages, of course, are usually unions of love—even when entered into by widows and widowers with families from earlier marriages. The strains on family relationships can be severe, but love can conquer all. Sometimes, though, late marriages can be the product of manipulation and overreaching by one of the spouses. While there is little empirical data to indicate any change, it seems increasingly common that mildly (or even severely) demented seniors are drawn into marriages with (often younger) caretakers, opportunists or even, sometimes, well-meaning but self-interested acquaintances. A recent Illinois case explored the aftermath of such a relationship.

John R. Lundahl and Elizabeth Gabel were married in Florida in August, 1988. By 1989, Mr. Lundahl had become so incapacitated that a guardian had been appointed to make both personal and financial decisions for him. His guardian sued to have the marriage annulled, arguing that Mr. Lundahl had actually been incapacitated at the time of the marriage, even though no court order had been entered to that effect.

After a year of negotiations Ms. Gabel agreed that the marriage could be annulled, but on the condition that Mr. Lundahl’s guardian pay her $1,700 per month for the rest of her life. Payments began in July of that year.

After Mr. Lundahl died in June, 2000, the question arose whether his probate estate was liable for continued payments for the rest of Ms. Gabel’s life. She argued that the agreement clearly required lifetime payments, and that it was akin to the property settlement agreement that might have been entered had the couple gotten a divorce. The probate court agreed and ordered that the payments continue.

The Illinois Court of Appeals disagreed. Annulment of the marriage, said the appellate court, was a judicial declaration that the marriage never existed, not that a valid marriage was ended. Since no marriage ever existed the settlement agreement should be judged according to general contract principles rather than the standards applied in divorce cases. Even if marital settlement agreement principles were applied the payments should end, the court decided.

Public policy considerations, said the judges, required that any intention to extend liability after the death of one party to a contract should be clearly expressed in the contract itself. Although this agreement was to continue for the rest of Ms. Gabel’s “natural life,” it was silent about what would happen on the death of Mr. Lundahl, the other party to the agreement. In the absence of clear language, Mr. Lundahl’s estate was not liable, and the payments to Ms. Gable ended on his death. Estate of Lundahl, July 16, 2002.

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