I. Undue Influence in the Context of Marriage
The pattern of a family member, friend, or other caregiver increasingly insinuating himself or herself into the life of a vulnerable elder, while increasingly cutting off the elder’s contact with the outside world, is sadly a well-known one. Because of an impaired elder’s inability to fully care for himself or herself, the elder must necessarily rely on the assistance of others to accomplish certain tasks of daily life. When a caregiver exercises his or her responsibilities in good faith, the best interests of the elder are served. With depressing regularity, though, a caregiver will induce an elder to change his or her estate plan to the benefit of the caregiver and to the detriment of the elder’s expected heirs. A caregiver’s increasing dominance over an elder’s affairs is known as undue influence.
As with most legal principles pertaining to elders, the particularities of the legal doctrine of undue influence necessarily differ from state to state based on each state’s judicial precedents or relevant statutes. That said, the broad principles at issue are generally applicable. The Massachusetts Supreme Judicial Court succinctly summarized this area of the law in O’Rourke v. Hunter:
Four considerations are usually present in a case of undue influence: “that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means[.]”
An offshoot of the general topic of undue influence in probate litigation is the issue of someone with access to an elder marrying him or her, even if the elder does not fully understand what is occurring. In some ways, entering such a predatory marriage can be more advantageous to the undue influencer than inducing the elder to change his or her estate plan or placing the caregiver’s name on his or her financial accounts, both of which are classic signs of undue influence. These signs of undue influence, however, are also exactly the kinds of changes that might be made when individuals enter a loving marriage. The dividing line between love and financial predation, then, is not always easy to discern. Predatory marriage may have other, more direct advantages for an undue influencer as well.
To illustrate these advantages, consider that upon the elder’s death, a suspicious will must be presented to a court for probate, where the elder’s rightful heirs can challenge the will. In the case of a marriage that takes place shortly before death, however, even if a will is disallowed for probate based on its questionable provenance, the predatory spouse could still be entitled to a share of the decedent’s estate either under the laws of intestacy or as a pretermitted or omitted spouse from an earlier valid will. The spousal share, even if intended to prevent a loving spouse from being left destitute upon his or her spouse’s death, can thus be used as a weapon to wrongfully claim a share of the decedent’s estate.
II. Marriage and the Capacity to Marry
Marriage is a particularly personal issue, and restrictions on the right to marry must be treated with great caution. This is no less true of the elderly. The U.S. Supreme Court recognized “the transcendent importance of marriage[,]” stating in Obergefell v. Hodges that it is “essential to our most profound hopes and aspirations.” The Court found that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” “Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause” and that “[a] first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
Though marriage is a fundamental right protected by the Constitution, restrictions on the categories of people who may marry have always existed. The state may reasonably regulate marriage as long as such regulations “do not significantly interfere with decisions to enter into the marital relationship.” While restrictions such as those based on race and gender have been struck down, others, such as state bans on bigamy, have thus far survived.
Separate from the question of whom one may marry is the question of whether a particular individual has the mental capacity to marry anyone at all. Because this question implicates basic self-determination, when it comes to marriage, “one should not be deprived of that right on the grounds of mental incompetence without an opportunity to be heard before a judicial tribunal.” Courts have generally interpreted state marriage licensing statutes to follow the common law precedent that in order to be mentally competent to marry, one must have “a capacity to understand the nature of the [marriage] contract, and the duties and responsibilities which it creates.” Other courts have imposed a somewhat lesser standard. The capacity to conduct business may not be necessary for a party to have capacity for marriage; in any event, “if a person has sufficient mental capacity to enter into general contracts, it seems that he unquestionably has sufficient mental capacity to enter into a contract of marriage.”
Even though marriage is a fundamental right, it is a right that fewer people are choosing to exercise. Correlation does not equal causation, but a study showed that “[d]espite similar education levels, poverty is four times higher among unmarried than married [baby] boomers, and disability is twice as high.” While the loss of a spouse has detrimental health effects, research shows that those effects at least can be somewhat mitigated by remarriage. Unsurprisingly, a happy marriage leads to better health outcomes than an unhappy one; “[f]or individuals with a disability or functional limitations, a high quality marriage helps to minimize the psychological burdens related to quality of life whereas a low quality marriage diminishes mental health and quality of life.”
It is easy to see how remarriage might be appealing to an elder who is widowed or divorced and whose children are adults with families and priorities of their own. If the elder’s choice of a new spouse is a good one, his or her perceived quality of life might improve substantially. Distinguishing between a love match and a predatory marriage, though, may not always be easy for an outside observer. A further difficulty involves potentially mixed motivations on the part of the elder’s family members, who, in addition to being concerned about the elder possibly having someone taking advantage of him or her, may not be overly enthusiastic about sharing what they expected to be their inheritance with the elder’s new spouse.
An infamous case in point is the marriage between J. Howard Marshall II and Anna Nicole Smith. Marshall’s first marriage ended in divorce, and his second marriage ended with the death of his wife. As his second wife’s health declined, Marshall began an extravagant affair with a stripper, spending approximately $2 million per year on her. Sadly, the stripper “died suddenly as a result of complications from facelift surgery[.]” After the death of his second wife and his stripper mistress, Marshall became depressed, so his driver took him to a strip club to cheer him up. There, the 86-year-old Marshall met a 24-year-old stripper named Vickie Lynn Smith, also known as Anna Nicole. Over the next 3 years, Marshall lavished her with gifts and repeatedly asked her to marry him. Eventually, the two did marry, though Marshall died a little more than a year later. His death set off more than 20 years of litigation between Smith and one of Marshall’s sons from his first marriage; indeed, the litigation continued even after the deaths of both competing potential heirs. As with much probate litigation, no one involved emerged looking very good.
III. Attacking a Marriage
With more frequency than one might expect, persons alleged to lack the mental capacity to marry have nevertheless purported to marry. Courts have reasoned that “[t]he general presumption is that a person who has contracted a marriage was mentally capable of contracting it, and the burden is on the party alleging mental incapacity to prove it.” In most jurisdictions, a guardian or other representative cannot file suit for divorce on behalf of an incapacitated spouse. By contrast, “there is a strong tendency to permit termination of the marital relation through an action for annulment … . [S]uch a proceeding is brought on the assumption that a valid marriage never did exist, so there can be no question as to the incompetent’s possible desire to continue it.”
A subset of cases exists challenging the purported marriage of a person alleged to be mentally incompetent but in which a collateral attack on the marriage has neither been initiated nor concluded prior to the death of one of the parties to the purported marriage. In such cases, courts must decide on state law grounds whether a collateral attack on the allegedly predatory marriage may proceed regardless of the fact that the vulnerable party to the marriage has died.
The distinction has been drawn that “any marriage which is in fact null and void may be attacked after the death of either or both of the parties[,]” whereas “marriages which are merely voidable may not be attacked after the death of either of the parties.” The crucial inquiry, therefore, is whether the marriage of a mentally incompetent person is considered to be void ab initio, making the marriage a legal nullity or, instead, voidable, meaning that it is effective unless directly challenged. “[T]he rule of the common law, and the one which ordinarily prevails in the absence of contrary statutory provision or implication, is that the marriage of a person who was insane or otherwise mentally incompetent to enter into the marriage, is void, and consequently open to attack after the death of either or both parties.”
Courts have wrestled with the issue of voidness versus voidability and how the issue applies in the context of a particular state’s statutes. In addition, they have not always been happy with the logical conclusions of their own decisions. In the (by no means recent) case of White v. Williams, a majority opinion of the Mississippi Supreme Court ably sets out the relevant policy considerations:
It must be admitted that, [in shielding the marriage of a mentally incompetent person from challenge after that person’s death], fraudulent marriages with insane persons may take place, resulting, on the death of the insane, defrauded spouse, in his or her estate being diverted from its rightful course of descent and distribution. On the other hand, if would-be heirs were permitted, after the death of the insane defrauded spouse, to attack the marriage in order to inherit the estate of such deceased spouse, we think the gates of fraud would be opened still wider. The incentive to perjury would be great in many cases, especially where there was no issue of the marriage, and the marriage had taken place against the wishes of those attacking it. It is often an illusive [sic] question whether a person is sane or insane, and the extent of the insanity, if any, whether or not the person is so unbalanced mentally as to be incapable of understanding the nature of the act being inquired into. [Psychiatrists] of high standing and great learning often differ on this question. In many cases, the testimony of the person himself, alleged to be insane, has a material bearing on the question; if his mouth is closed by death, material evidence cannot be had.
Based on this reasoning, that Court held that any interested heirs must seek a judicial remedy during the life of the mentally incompetent party to the marriage, or not at all.
The case of Hoffman v. Kohns shows the logical endpoint of the reasoning espoused by the Mississippi Supreme Court. In that case, Herbert, a man in his 80s, was in failing health. He suffered from cerebral arteriosclerosis and senility as well as organic brain syndrome. He required 24-hour nursing care, and his housekeepers —
provided him transportation, purchased all of his food, made meals, kept house, wrote checks for his signature, and generally handled his personal and routine financial matters. …
Kohns was frail and feeble, disoriented at times, forgetful, sometimes hostile and irate, suspicious and paranoid. He was withdrawn at times, sitting for hours staring into space.
In the last week of August 1975, Eloise, a 55-year-old woman with no prior relationship with Herbert, was newly hired as a housekeeper. On September 1, Eloise took Herbert to close his safety deposit box and withdrew all of his readily accessible assets. On September 19, Eloise took Herbert to apply for a marriage license, and on September 22 she took him to a notary public to have a marriage performed. Eloise took Herbert to her own attorney to prepare a new will on September 23 and had Herbert execute the will on September 26. Immediately upon the marriage, Eloise moved Herbert into her own home. Within a week, she transferred Herbert’s assets into new joint accounts. On October 3, Eloise took Herbert to revoke a pre-existing trust and subsequently transferred securities previously held in the trust either to herself alone or to herself and Herbert jointly.
In post-death proceedings, the appellate court found, “The evidence overwhelmingly supports the [trial] court’s determination that the September 26, 1975, will was procured by undue influence.” The court found:
The evidence establishes that [Eloise] completely dominated Kohns both before and after September 26, 1975, the date the new will was executed, by taking control of all of his business affairs, taking over the writing of checks and balancing of his checkbook, and changing his attorney, doctor, accountant, and stockbroker. The systematic transfer of all of Kohns’ assets to [Eloise] or into joint tenancy is further evidence of her undue influence. There is no evidence that Kohns made a single independent decision after the marriage.
Kohns’ marriage to a woman thirty years younger than he, whom he had known for less than a month; the complete cancellation of his entire long-standing estate plan; and the changing of his doctor of over fifteen years, his lawyer of ten years, his accountant, and his stockbroker, all within a few weeks, are highly unusual, and the trial court quite properly found that these actions were taken as a result of the undue influence of [Eloise]. The revocation of the trust was part of a continuing pattern begun immediately after the marriage. The trial court could not reasonably find otherwise.
Despite the veritable mountain of evidence against Eloise, the court held that “[a] marriage to which the consent of one of the parties is obtained by undue influence is merely voidable. Consequently, it cannot be attacked upon this basis after the death of either of the parties.” Proceeding from the seemingly dubious presumption that, although Herbert was unduly influenced, he otherwise would have been mentally competent to enter into a marriage, the court found that Eloise was entitled to take the share of a pretermitted spouse from the last will Herbert had executed prior to the marriage. As the court explained, “Even though [Eloise] improperly influenced [Kohns] to execute the September 26 will, once that will was revoked they were in the same posture as if no will had been made following the marriage. Therefore, since there was no marriage contract and no reference to [Eloise] in the [prior] will, she was entitled under the statute to her intestate share, which would be Kohn[s’] entire estate because he died without lineal descendants.” As in White v. Williams, therefore, the only way to challenge the predatory marriage to which Kohns was a party would have been to challenge it prior to his death.
It is impossible for an aggrieved heir to protect his or her rights, however, when the challenged marriage is kept secret during the decedent’s life. Faced with this fact pattern, in the case of In re Estate of Laubenheimer, a majority of the Wisconsin Supreme Court concluded that, at least in that state, a court does have the authority to declare a marriage void after the death of one of the spouses. In Laubenheimer, Joseph, an interloper, at some point insinuated himself into the life of Nancy, an elder whose health was failing. Nancy was admitted to the hospital on October 1, 2008, with stroke-like symptoms, and the health care power of attorney held by her cousin was activated based on Nancy’s incapacity on October 11. Nancy was transferred to a nursing home on October 13. Joseph removed Nancy from the nursing home on October 27 to obtain a marriage license and again on November 3 for a marriage ceremony. Joseph did not inform Nancy’s “family, friends, doctors, or social workers about the wedding.” Nancy died on February 5, 2009, and her treating physician opined that at no time after her admission to the nursing home “did she have sufficient capacity to consent to marriage.”
Joseph subsequently sought appointment as personal representative of the estate and claimed entitlement to a statutory share as surviving spouse. A lower court concluded that it did not have the power to invalidate the marriage after Nancy’s death, and the question was brought before the Wisconsin Supreme Court. A majority of the Court followed the common law principle that “a void marriage, as distinguished from one that is merely voidable, is null from its inception … . It can be attacked either directly or collaterally, and in fact, a marriage void ab initio is subject to collateral attack at any time whereas a marriage merely voidable cannot be annulled after the death of either spouse.” Applying this principle, the Court held that “if a party to an alleged marriage is incompetent at the time of a marriage ceremony and subsequently dies before he or she is able to ratify the marriage, the fatal defect to the marriage can never be cured.”
IV. Statutory Solutions
Greatly simplified proceedings are made possible in the small minority of states where statutes that explicitly allow post-death challenges to a marriage’s validity on undue influence grounds have been enacted. Florida’s statute, adopted in 2010, provides:
A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the … rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses subsequently ratified the marriage.
Any interested person may initiate a challenge to a marriage within 4 years of the decedent’s death, and the challenger bears the burden of proof by a preponderance of the evidence. Though the challenged marriage will not be invalidated per se, if the challenge is successful, it will be treated as if it had no legal effect regarding the disposition of the decedent’s estate.
Texas’s statute, which took effect on January 1, 2014, allows an interested person, within 1 year of the decedent’s death, to challenge the validity of a marriage that began no more than 3 years before the decedent’s death. In an action brought under this provision, “the court shall declare the decedent’s marriage void if the court finds that, on the date the marriage occurred, the decedent did not have the mental capacity to: (1) consent to the marriage; and (2) understand the nature of the marriage ceremony, if a ceremony occurred.” In interpreting and applying the statute, the Texas Court of Appeals held, “If a party seeks to annul a decedent’s marriage for lack of mental capacity, the burden is on the applicant to prove the decedent lacked the required mental capacity.”
California’s statute appears to be the most recent, having been approved by the governor on June 26, 2019, as Chapter 10 of the Acts of 2019. The new California statute presumes fraud or undue influence when a donative instrument makes a gift to a caregiver who began a marriage with the grantor while providing services to the grantor or within 90 days of the cessation of such services and the relevant document was executed less than 6 months into the marriage. Further, it precludes such a caregiver spouse from receiving a pretermitted spouse’s share of the decedent’s estate if the decedent died within 6 months from the marriage date, unless the caregiver can prove by clear and convincing evidence that the marriage was not the product of fraud or undue influence. Thus, the California statute goes further than the Texas statute by placing the burden of proving the marriage’s legitimacy on its proponent.
As a matter of public policy, allowing collateral attacks on predatory marriages, even after the death of a vulnerable elder, appears to be entirely justifiable. In 1931, the Mississippi Supreme Court made the calculation that it would be better in some instances to allow a predatory spouse to profit from his or her wrongdoing than to encourage attacks on late-in-life marriages that frequently would be without merit. The Court’s concerns would be better addressed by careful statutory drafting limiting the situations in which collateral attacks would be viable than by entirely insulating the conduct of a predatory spouse from external scrutiny. On equitable grounds, it is difficult to argue that, on the facts presented in an egregious case such as In re Estate of Laubenheimer, or indeed Hoffman v. Kohns, the predatory spouse should be allowed to profit from his or her targeting of a vulnerable elder for his or her own profit. Although the autonomy of elders must be respected, elders must also receive heightened protections due to their greater susceptibility to abuse as their capabilities decline. Jurisdictions that enact statutes such as those that now exist in Florida, Texas, and California, which enable interested parties to successfully attack truly predatory marriages, provide protection to vulnerable elders without unduly interfering with their inherent rights to live their lives as they see fit.