“Deathbed marriages,” notes one commentator, “can be the ultimate weapon for those looking to prey on the elderly.”1 They confer all the perks of marrying for money without the drawbacks of a long, loveless marriage. Within hours or even minutes, a conniver can come into a big chunk of his partner’s estate through intestacy or elective share rules, as well as a steady stream of benefits, residency rights and other goodies. Unfortunately, this scheme happens all too often. Regular readers may remember our April 2010 column, “Marrying for the Money: A New Twist?”describing two New York cases,2 both involving a caregiver coming into a windfall by marrying an elderly, dementia-stricken charge months from his death. The good news is that New York, like Vermont, Louisiana and New Jersey, had rules in place granting heirs standing to challenge a deathbed marriage after one spouse’s death. The bad news is that no other states had those rules at the time, making deathbed marriages a risk-free con in most parts of the country.
Until recently, Florida’s treatment of deathbed marriages reflected the con-friendly majority practice. The issues are well-dissected in Prof. Terry Turnipseed’s wonderfully titled “How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America”.3 The trouble stems from how standing rules apply to different kinds of marriage defects. The spouses, the state or interested third parties can all challenge defects that make a marriage void. Typically, these include things like bigamy, incest or, in most states, same-sex status – defects, in other words, that spring from the nature of the parties rather than the circumstances of the marriage itself.
With voidable marriages, circumstantial concerns like incompetence, undue influence, fraud, duress or sham predominate, and in almost every state, standing to attack the marriage rests only with the parties themselves. (Florida, atypically, regards incompetence as creating a void, not voidable, marriage.) Unfortunately, voidable defects are the ones that create deathbed marriages. Thus, after the vulnerable spouse has died, the only person with the ability to expose the con is the person who benefits from it.
Let Down Your Heir
Recognizing that voidable defects are “the most common methods for exploiting an elderly and infirm” person, thus “leaving the remaining family and heirs without a remedy,”4 Florida has closed the loophole. In late 2010, it enacted F.S. 732.805, which grants heirs, legatees and other interested parties standing to challenge any marriage, even after the death of one spouse, on the grounds of fraud, duress or undue influence. The contestant has the burden of proof and must meet a preponderance of evidence standard. The surviving spouse can counter that the decedent subsequently ratified the marriage, but in doing so, the spouse assumes the burden of proof. If the contestant prevails, the marriage remains intact – but the surviving spouse loses all property rights under the Florida Probate Code, including his elective share and insurance, homestead and exempt property rights. In fact, unless the decedent’s will specifically provides for the spouse by name (instead of merely referring to “spouse”), a surviving deathbed spouse will lose the right to any devises and bequests. In other words, Florida’s statute severs the link between marriage status and property rights for suspect deathbed marriages.
It’s unsurprising that Florida is one of the first states to protect against deathbed marriages. It has the highest percentage of elderly in the country, so the opportunities for deathbed marriages abound. But it’s still a little puzzling why other states haven’t acted similarly. Florida may have the oldest population, but most every state’s demographics are top-heavy. Since deathbed marriages are almost universally per se unchallengeable, most elderly in the country can be preyed upon risk-free. And yet not only do most states allow such marriages to happen without investigation or incident, but also an astonishing 19 states expressly prohibit heirs from challenging deathbed marriages.
The Perils of Privacy
Prof. Turnipseed lays out five fixes to the deathbed marriage problem: (1) Putting more stringent safeguards in the marriage process, like requiring a presiding doctor to testify concerning fitness; (2) Increasing the mental capacity standard for marriage to the level approaching testamentary capacity; (3) Creating a rebuttable presumption of incapacity if one spouse dies within a certain time period after a marriage; (4) Adopting the Uniform Probate Code’s approach of gradually scaling up elective share rights throughout the life of the marriage; and (5) Prohibiting weddings in hospitals, at sickbeds and under similar circumstances.
But the fact remains that states rarely enact these solutions. This points to policy, doctrinal and administrative issues surrounding marriage generally. On the policy side, all states favor marriage, full stop. Although deathbed nuptials are surely not what states have in mind when they try to promote matrimony, this policy preference nonetheless leads to an overall distaste for restricting the right to marry. Moreover, federal law favors marriage so strongly that some of these proposed solutions may be unconstitutional. The Lochner-era and Warren Supreme Courts are about as different as two Supreme Courts can be, but they both found a fundamental right to marriage in the Constitution. States may err on the side of caution when restricting marriage, because they fear lawsuits alleging due process violations.
Florida’s statute has found a clever way around this concern. It doesn’t narrow any existing right to marry–it simply severs marriage from its usual property consequences under certain circumstances. And that, Prof. Turnipseed observes, has long been acceptable: The Constitution respects the right to marry, but states have great leeway in deciding how marriage affects property rights.5
Increasing publicity surrounding the issue, as well as an increasingly elderly electorate, may result in more states addressing the problem of deathbed marriages. But a final concern remains. As noted above, states are comfortable voiding a marriage because the parties are somehow unfit for it; they’re far more reluctant to void a marriage because of its circumstances. Part of this is no doubt simple respect: Marriage is understood to be a deeply personal thing, and people shy away from allowing the outside world to decide what circumstances “legitimize” a union. But even with deathbed marriages in which the moral intuition strongly favors some outside intervention, the fact is that the kinds of issues rendering a marriage void are much easier to investigate than those rendering it voidable. Because void marriages are defective by virtue of the parties’ nature, the inquiry comes down to easily ascertainable questions of fact: It doesn’t take much to figure out whether spouses are siblings, the same sex or already legally married. In fact, the state will already have records proving or falsifying these possibilities as part of the normal functions of a modern bureaucracy. Investigating the circumstances of a marriage, by contrast, involves costly and time-consuming litigation that has the potential to clog up the courts. In the end, deathbed marriages may just be the sad casualty of a too-broad cost-benefit analysis.
1. Florida Probate & Trust Litigation Blog post by Juan Antunez, Dec. 17, 2010, www.flprobatelitigation.com/2010/12/.
2. In re Berk, 2010 N.Y. Slip Op. 02139 (S. Ct., March 16, 2010); Campbell v. Thomas, 2010 N.Y. Slip Op. 02082 (S. Ct., March 16, 2010).
3. Kentucky Law Journal, Vol. 96, 2007-2008, p. 275.
4. Subcommittee Report on Challenges to the Validity of Marriage After the Death of a Spouse in Probate Proceedings, Probate and Trust Litigation Committee, Jan. 11, 2008.
5. Prof. Turnipseed’s preferred solution is similar to Florida’s approach. He would allow interested parties to challenge whether the decedent had testamentary capacity at the time of the marriage. If he didn’t, the marriage would remain intact, but the usual property consequences of marriage wouldn’t apply. He also proposes a short statute of limitation from the date of marriage, not from the date of death.