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.