Post-Death Challenges to the Validity of a Marriage

Wisconsin Supreme Court affirms the distinction between “annulment” and a judicial declaration of “void”

Do the Wisconsin marriage and annulment statutes allow a court, in an estate case, to declare a marriage void after the death of one of the parties?  “Yes,” said the Wisconsin Supreme Court in In re the estate of Nancy Ellen Laubenheimer: Joseph McLeod v. Patricia Mudlaff, 833 N.W.2d 735, 2013 Wisc. LEXIS 287 (2013).  In Laubenheimer, the court stated that there’s a fundamental difference between annulment and a judicial declaration that a marriage is void.  And, said the court, a court may use its declaratory judgment powers to declare that a marriage prohibited by law is void and incapable of validation by the parties to the marriage. 


Nancy’s Two Marriages

Nancy and Luke Laubenheimer were married for 30 years; in 2001, Luke passed away.  They had no children from their marriage, although Luke had three children from a previous marriage.  Nancy never adopted any of Luke’s children. 

In 1999, Nancy executed a will, with the majority of her estate going to Luke as her heir.  If Luke predeceased her, the majority of her estate was to be distributed to Luke’s three children. 

In January 2007, Nancy suffered a stroke and passed away in February 2009.  Prior to her death, she suffered from multiple health issues, including hypertension, diabetes and renal failure.  At some point around 2003,  Joseph McLeod came to live with her.

In 2008, Nancy suffered stroke-like symptoms that resulted in diminished mental capacity.  Her doctors concluded that Nancy was incapacitated to make health care decisions, and her cousin assumed the role as health care power of attorney.  In October of that year, Nancy was transferred to a nursing home.  On Oct. 27, 2008, Joseph removed her from the nursing home to obtain a marriage license; a week later, he removed her again for a marriage ceremony before a Washington County Court Commissioner.  None of Nancy’s friends or family knew about the wedding. 

In 2009, Nancy’s stepdaughter, Patricia, filed a petition in Washington County Circuit Court seeking temporary and permanent guardianship of Nancy and her estate, in addition to protective placement.  In her petition, Patricia claimed that: 1) Nancy suffered from severe cognitive disability due to her stroke; 2) Joseph continued to interfere with Nancy’s health care, in contravention of Nancy’s health care power of attorney; and 3) Nancy was incompetent and in need of a guardian.  In 2009, the court appointed Nancy’s cousin (her health care power of attorney) as temporary guardian of Nancy and Nancy’s sister a temporary guardian of the estate.  The court concluded that there was a reasonable likelihood that Nancy was incompetent.    

On Feb. 5, 2009, Nancy passed away while the permanent guardianship proceedings were pending.  Two days later, her physician submitted a letter that, at no time subsequent to Nancy’s admission to the nursing home, did she have sufficient capacity to consent to marriage. 


Conflicting Petitions

In June 2009, Joseph filed a petition for formal administration of Nancy’s estate and asked the court to appoint him as personal representative.  He asserted his right to a share of Nancy’s estate, claiming that Nancy’s 1999 will wasn’t properly executed or valid.  He was unable to locate the original will, although he did produce a copy to the court.  Joseph claimed that because the will was executed prior to his marriage to Nancy, he had a right to a share of her estate under Wisconsin Statute Section 853.12, which provides that if a testator marries a surviving spouse, after the testator executes her will, the surviving spouse is entitled to a share of the probate estate.  Joseph argued that because Nancy didn’t have any biological children and never adopted Luke’s three children, he was the sole heir of her estate. 

Patricia also filed a petition for formal administration of Nancy’s estate.  She sought to be named co-personal representative of the estate along with her brother, Millard.  Patricia sought to admit a copy of Nancy’s will into probate.  Additionally, she argued that Nancy’s marriage to Joseph was invalid because Nancy lacked the mental capacity to enter into a valid marriage.  Accordingly, argued Patricia, Joseph had no right to a surviving spousal share of Nancy’s estate. 

In December 2008, the circuit court stated that whether it had authority to invalidate the marriage between Joseph and Nancy would control the course of the estate.  Applying Wisc. Stat. Section 767.313, the court determined that the only way a marriage can be invalidated in Wisconsin is through annulment.  However, Wisc. Stat. Section 767.313(2) states that no marriage may be annulled after the death of a party to the marriage.  Accordingly, the court rejected Patricia’s claim that it had the power to invalidate the marriage.  The court granted Joseph’s petition for formal administration and denied Patricia’s petition.  The court also appointed a neutral party to serve as personal representative of Nancy’s estate.  Patricia appealed, which is the basis of the instant action. 


Declaration of Void v. Annulment

The Wisconsin Supreme Court was asked to determine whether the statute allows a court, in an estate case, to declare a marriage void after the death of one of the parties.  The court specifically stated it wasn’t making a determination of the validity of the marriage between Nancy and Joseph.  Rather, the issue was the authority of the court to pass on the validity of a marriage after the death of one of the parties to the marriage. 

Each party claimed that a different statute applied to the facts of the case.  Joseph relied on Wisc. Stat. Section 767.313 and argued that annulment is the exclusive means to invalidate a void or voidable marriage.  He argued that Section 767.313(2) prohibits a marriage from being annulled after the death of one of the parties to the marriage. 

While Patricia conceded that under Section 767.313, a court can’t annul the marriage, Wisc. Stat. Section 765.053(1) prohibits a marriage in which a party has a lack of understanding to render her incapable of assenting to marriage.  Patricia claimed that the court had the authority under Wisc. Stat. Section 806.04(4) to declare such a marriage void in an estate case, even after the death of one of the parties. 

After a lengthy analysis of all the relevant statutes relating to marriage, the court determined that the annulment provision in Wisc. Stat. Section 767.313(1) was central to the instant case.  That provision lists the grounds for an annulment suit brought by a party and also states that “judicial proceeding is required to annul a marriage.  A marriage may not be annulled after the death of a party to the marriage” (Wisc. Stat. Section 767.313(2)).


Common Law Analysis

In addition to examining the relevant statutes, the Wisconsin Supreme Court also analyzed cases decided under common law, in which one of the parties to a marriage died and a subsequent challenge to the marriage ensued.  InEstate of Toutant, 247 Wisc.2d 400 (2001), the court held that when one of the parties passed away, such that any impediment to a a valid marriage was no longer capable of being corrected, a declaration that a marriage was void was the proper remedy.  TheToutant  court of appeals affirmed the circuit court’s use of its declaratory judgment powers to void the marriage, drawing a distinction between annulment and declaring a marriage void after death.  “That distinction had been preserved,” said the Wisconsin Supreme Court in the instant case, and a marriage may be declared void after the death of one of the parties.  Furthermore, in Williams v. Williams, 63 Wis. 58 (1885), the Wisconsin Supreme Court held that:

. . . a void marriage, whatever the mechanism or process for challenging the validity of the marriage, may be challenged in the lifetime or after the death of the marriage parties, directly or collaterally.

The court in the instant case noted more modern cases that continued to recognize a common law right to post-death challenges to the validity of a marriage. 


Void Marriages

Wisconsin case law defines a void marriage as one that’s “impossible for [the parties] under the law to contract it, and if it is impossible for them subsequently by any conduct to ratify it, and if the statute expressly declares that the marriage is void”(Davidson v. Davidson, 35 Wis.2d 401 (1967)).  And, Wisc. Stat. Section 765.01 requires that an individual be “capable in law of contracting”to marry in Wisconsin.  If a party to an alleged marriage is incompetent at the time of a marriage ceremony and subsequently dies before she’s able to ratify the marriage, the fatal defect to the marriage can never be cured.  In Wisconsin, the Uniform Declaratory Judgments Act is the mechanism under which a court may void a marriage, if one of the parties to a marriage is dead.  Thus, declaratory judgment authority to review a marriage after the death of one of the parties is necessary.


Abrogation of Common Law?

Joseph argued that even if case law permits a court to invalidate a marriage after death, the 2005 changes to the Wisconsin Statute Section 767 meant that the legislature intended to abrogate this rule and make annulment the only way to invalidate a marriage.  The Supreme Court disagreed.  Among other things, the Supreme Court noted that the 2005 Wisconsin Act Section 443 contained an explanatory notice after the amendment to the annulment statute, which stated that  “Reference to voiding a marriage is not included in the restated language because [Wis. Stat.] ch. 767 does not include actions to void a marriage.” In other words, said the court, Chapter 767, “Actions Affecting the Family,” doesn’t contain an action to void a marriage.  The action to void a marriage must proceed under Chapter 765, “Marriage.”  Additionally, the court noted that drafting records for the amendment don’t indicate that the legislature intended for annulment to be the only remedy to invalidate a marriage.  “If the legislature had wanted to eliminate this common law remedy, then it would have done so in clear, unambiguous language,” stated the court.  Moreover, “allowing a court to invalidate a marriage after the death of one of the parties to a void marriage accords with public policy and legislative intent on marriage,” stated the court. Finally,

Interpreting the changes to the annulment statute as a limitation on courts would drastically curtail a court's power to address fraud, mistake, and other exigencies in a disputed marriage in order to ‘declare rights, status, and other legal relations.’ Limiting a court's power would effectively shut off declaratory remedies for parties in an estate action.

Thus, the Wisconsin Supreme Court reaffirmed its holding in Toutant, acknowledging that “annulment is certainly an appropriate remedy to void a marriage when the parties to the marriage are still alive, but it is not the exclusive remedy to challenge the validity of a marriage.”



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