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“I Do – And Yes, He Does, Too”

Problems with deathbed marriages persist

Deathbed marriages have been a hot topic of concern in recent years, with many states enacting statutes to ensure that a decedent’s heirs have standing to challenge controversial nuptials.  But even so, there’s still cause for concern.  Let’s take Florida as a case study.

Under Florida common law, heirs lacked standing to challenge a decedent’s deathbed marriage, no matter how outlandish the ceremonial circumstances.  Courts found that their hands were tied and that there was little, if anything, that could be done within the bounds of the common law to effect justice. 


Committee Report

In 2008, the Florida Bar’s Probate and Trust Litigation Committee published an in-depth report on the state of the law regarding challenges within probate proceedings to the validity of marriages after the death of a spouse.1  The Committee recognized that deathbed marriages were of particular concern in Florida based on a combination of factors.  To begin with, a surviving spouse is entitled to a wide range of significant financial benefits under Florida law including, for example, the right to homestead property (at least a life estate in the decedent’s homestead residence), an elective share (30 percent of the decedent’s augmented elective estate), to take as a pretermitted spouse (up to 100 percent of the estate under the laws of intestacy), family allowance, exempt property and priority in preference in selecting a personal representative.

At that time, there were no Florida statutes that allowed a challenge to the validity of a marriage after the death of one of the spouses.  Moreover, there was some case law that indicated most deathbed marriages couldn’t be challenged.  Under the then-existing case law, an action could be maintained by heirs after the death of a spouse to attack a “void” marriage (for example, if the marriage was bigamous, incestuous, between persons of the same sex or if one spouse lacked the mental capacity to consent at the time the happy couple took their vows), whereas a marriage that was merely “voidable” (for example, if consent to the marriage was procured by undue influence, duress or fraud) couldn’t be challenged. 

The Committee noted that the result was staggering – “three of the most common methods for exploiting an elderly and infirm (but competent) person, to wit: undue influence, fraud, and duress, would only render a marriage voidable, possibly leaving the remaining family members and heirs without a remedy.” 


Closing the Loophole

Following the Committee’s report, Florida took action in 2010 and enacted legislation to close this loophole.2  Now, any interested person can challenge a surviving spouse’s rights and can do so as a defense, an objection or a separate cause of action in any proceeding in which the fact of marriage may be directly or indirectly material.  Challenges generally can be brought within four years after the decedent’s death. 


Less Than Perfect

But, it turns out that the legislation might not be perfect — there might still be a loophole or two for the extra-crafty.  For example, the statute provides that a surviving spouse who’s found to have procured a marriage by fraud, duress or undue influence isn’t entitled to, among other things, “any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.”

There is thus an exception that presumes that if the surviving spouse is named in the decedent’s estate plan, then the gift to the spouse was legitimate, despite the fact that the marriage was perpetrated by some illegitimate means.  This presumption is probably reasonable enough if we can assume that the drafting attorneys of every will, trust and power of appointment are careful and prudent.  But mistakes, or much worse, do happen.

Take, for example, the recent disbarment of a Florida attorney who actively assisted his girlfriend in marrying an elderly client to steal his money.  The facts of what happened are laid out in the Florida Supreme Court’s opinion in Florida Bar v. Swann.3

The attorney, Swann, initially hired Khadija Rhoualmi to clean his office, but the two soon became sexually involved.  Fast forward two years and Rhoualmi refers a 71-year-old man in poor health – both mentally and physically – to Swann, supposedly for help with a zoning issue related to a piece of real property. 

Approximately one week later, the client was hospitalized.  When he was later released from the hospital, the client executed a warranty deed transferring his house to himself and Rhoualmi as joint tenants.  The warranty deed stated that it was prepared by Swann.

This wasn’t an isolated incident, and Rhoualmi continued to take over the client’s property and finances.  A few months later, after the client was again just-released from the hospital, Rhoualmi drove him to the bank, where he added her name to his checking account.  She then almost immediately withdrew all of the money from his account and put it into an account in her name only.  And a few months after that, the two were married.  Shortly thereafter, the client was declared incompetent.  And he soon passed away.

After he died, a Florida trial court annulled the marriage and ordered Rhoualmi to return everything she took from him.  The trial court found that Swann had actively assisted Rhoualmi in her plan to steal the client’s money and other property.

In an ideal world, an attorney would never violate his ethical duties – nor the law, generally – and conspire against an elderly client.  But unfortunately, we don’t live in an ideal world.  It’s not  inconceivable to think that when someone procures a marriage via undue influence, fraud or duress, that they may also get their name into the spouse’s will or trust by similarly illegitimate means, potentially with the aid of the drafting attorney.  Given the statutory presumption, Florida practitioners representing heirs challenging the rights of a surviving spouse will need to pay particular attention to the circumstances under which any specific bequests to the spouse were made.


Other Jurisdictions

Elsewhere, statutes governing challenges to marriages vary as to whether heirs have standing to challenge the validity of a marriage at all, particularly after one of the spouses have died.  A majority of states – for example, Colorado, Illinois, Minnesota, Ohio and Pennsylvania – prohibit challenges based on fraud or duress after one spouse has died.4 However, there’s a recent trend toward allowing challenges after death in a growing minority of states.  In New York, for example, an heir may bring a challenge on the basis of fraud or duress after the death of one spouse, but only if the couple didn’t ratify the marriage by cohabitating after-the-fact with full knowledge of the facts constituting the fraud.5 Whereas in Vermont, relatives of the deceased spouse can contest a marriage on the basis of fraud and/or undue influence without any presumption with respect to validity or ratification by cohabitation.6 Presently, the Uniform Probate Code doesn’t address this issue, but it will be interesting to see whether the National Conference of Commissioners does so in the near future and whether additional states enact their own statutes allowing challenges after death.



1. 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.

2. F.S. 732.805 Spousal rights procured by fraud, duress, or undue influence.

3. Florida Bar v. Swann, Case No. SC11-836 (Fla. June 20, 2013).

4. See, Colo. Rev. Stat. Section 14-10-111; 750 ILCS Sections 5/301-302; Minn. Stat. Sections 518.05, 518.02; Ohio Stat. Sections 3105.31-3105.32; 23 Pa. Cons. Stat. Section 3305.

5. N.Y. Dom. Rel. Law Section 140. 

6. Vt. Stat. Ann. Tit. 15 Section 516.


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