DEATHBED MARRIAGES CONTINUE TO CAUSE HEADACHES

Deathbed marriages have become a topic for debate throughout the nation. When two people tie the knot as one is about to pass away, estate litigation is almost certain to follow. As many states grapple with the rights and responsibilities that should be awarded to spouses in such cases, Florida has made definitive steps to delineate the legal rules surrounding deathbed marriages.

Florida is considered a frontrunner in deathbed marriage legislation, largely because of a state commission’s report on the state of the problem in 2008. That report demonstrated that an increasing number of rightful estate challenges were being denied because heirs were essentially unable to argue against the deathbed marriage procedure. The critical flaw in the law lay in the fact that “void” marriages – those that were incestuous or made when the spouse was unable to consent – were not considered the same as those that were “voidable.” The voidable relationships would include those that were perpetuated by fraud or duress. Void marriages could be contested, while voidable marriages could not be challenged.

A decisive action by the state’s legislature in 2010 made strides toward closing this critical loophole, providing additional rights to heirs who might want to contest a questionable marriage. Now, challenges can be brought within four years of the decedent’s death. Other heirs can challenge the will even if the marriage is not directly material to the case. The law is not without its shortcomings, though. For example, if a spouse is named in an estate plan, the gift is almost automatically considered valid. Fraudulent marriages are thought to generally rely on spousal property rights alone.

As a result, attorneys in Florida must still be vigilant about the circumstances under which a so-called fraudulent marriage has occurred. Not only must heirs prove that the marriage was completed with malicious intent, but they must also be able to demonstrate that the benefactor did not intentionally leave property to the surviving spouse.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.