Supreme Court May Decide Whether Marriages Can Be Voided After Death of Spouse

By Joe Forward, Legal Writer, State Bar of Wisconsin

June 21, 2012 – The Wisconsin Supreme Court may soon decide whether Wisconsin courts can “void” marriages after a spouse has died despite the state’s annulment statute, which does not allow marriages to be “annulled” after a party to the marriage has died.

In the case, the former step-children of a deceased woman, Nancy Laubenheimer, are entitled to an estimated $768,000 under her will, but only if the court declares her marriage to Joseph McLeod void. They accuse McLeod of marrying Laubenheimer when she was incapacitated.

In its certification to the supreme court, the appeals court identifies the dilemma: Protecting incapacitated individuals from marriage to “the unscrupulous Lothario or seductress” versus preventing those who contest valid marriages from “gaming the tax code in probate court.”

“We do not know nor can we infer from the facts of this case whether Joseph took advantage of Nancy, whether he comforted her in her difficult final years, whether Nancy was competent when she married Joseph, or whether Nancy’s step-children are attempting to claim what is not theirs,” the appeals court wrote in its certification to the supreme court.

The appeals court even invoked celebrity gossip, noting a case in which actress Reese Witherspoon’s mother (Betty) sued her father (John) for bigamy, alleging she was trying to protect him from a gold-digging seductress (Tricianne), a woman 10 years his junior.

“If this scenario occurred in Wisconsin and John were to die before his second marriage was annulled, it is unclear whether Betty or Tricianne would be considered his wife for probate purposes,” the appeals court wrote.

The Will and Subsequent Marriage

Laubenheimer’s former step-children are alleging that McLeod removed Laubenheimer from a nursing home and married her when she did not have the mental capacity to consent.

Laubenheimer, whose first husband predeceased her, had executed a will in 1999 that left her estate to her step-children if her first husband died before she did. The first husband died in 2001, and Laubenheimer never changed the will after her first husband’s death.

In 2007, Laubenheimer suffered a stroke. According to court documents, McLeod and Laubenheimer were living together in 2007. In October 2008, a second stroke led doctors to declare that Laubenheimer was incapacitated, and she was admitted into a nursing home.

The former step-children allege that McLeod removed her from the nursing home less than a month later and they married. Laubenheimer’s former step-daughter instituted proceedings to place Laubenheimer back in a nursing home, but Laubenheimer died shortly after.

McLeod entered the will for probate, asserting a spousal right to the estate.

Under Wis. Stat. section 853.12, surviving spouses are entitled to share in the estate if the decedent executed the will before the marriage. Children and their issue also share in the estate, but Laubenheimer had no children, only the former step-children identified in the will.

Thus, McLeod argues that he is the sole heir of Laubenheimer’s estimated $768,000 estate. However, the former step-children argue the 1999 will should control because the marriage is null and void. They say Laubenheimer’s incapacitation means she could not consent to marry.

Is Annulment Different Than Voiding a Marriage?

The circuit court denied the former step-children’s request to void the marriage, concluding that the state’s annulment statute prohibits annulment after a spouse dies.

In 2001, a state appeals court had ruled that courts could void marriages after spousal death, but the state legislature subsequently amended the annulment statute in 2005.

Wis. Stat. section 767.313(2) now states that “a marriage cannot be annulled after the death of a party to the marriage.” However, the step-children argue that despite the annulment statute, the court still has the power to declare marriages void from the start.

The plaintiffs point to Wisconsin’s marriage statutes, ch. 765, which state that a marriage is not valid if one party is incompetent at the time of the marriage.

Appeals Court Certifies Question to the Supreme Court

The Wisconsin Court of Appeals certified McLeod v. Mudlaff to the Wisconsin Supreme Court to review the interplay between the state’s marriage and annulment statutes.

Recounting 19th through 21st Century marriage and annulment law – including distinctions between valid, void, and voidable marriages – the appeals court now asks the supreme court to decide the ambiguities presented by 2005 amendments to the annulment statute.

Specifically, the appeals court asks the supreme court to decide whether the annulment statute prevents marriages from being voided after death, a reading that would overrule prior case law.

“While this very well may have been what the legislature intended to do, we are hesitant to come to this conclusion, as only the Wisconsin Supreme Court can overrule one of our decisions,” the appeals court wrote, citing Ellis v. Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692.

While the former step-children argue that the annulment statute does not prohibit courts from declaring invalid marriages void, McLeod argues that annulment is the only process to do so, and the annulment statute clearly stops annulment actions after a party to the marriage dies.

“If chapters 765 and 767 are read such that annulment is the only process available to void a marriage, Wisconsin law would protect the unscrupulous Lothario or seductress who woos and marries a terminally ill and mentally infirm individual,” the appeals court wrote.

“Conversely, the legislature may have wanted to prevent a party from contesting the validity of a marriage after death to prevent him or her from gaming the tax code in probate court.”

The supreme court will hear the case upon a majority vote of the justices.