July 29, 2013 – Circuit courts can still void marriages after one spouse dies, the Wisconsin Supreme Court has ruled, meaning a petitioner can challenge a surviving spouse’s share of an estate on the grounds that the marriage should be voided.
Patricia Mudlaff, daughter of decedent Nancy Laubenheimer, argued that her mother’s marriage to Joseph McLeod was void because Laubenheimer lacked the mental capacity to enter into the marriage. McLeod, who married Laubenheimer just months before her death in 2009, sought a spousal share of her estate.
A circuit court ruled in favor of McLeod, concluding that Wisconsin’s annulment statute prohibits marriage annulments after one spouse dies. The state appeals court certified the case to the Wisconsin Supreme Court, which recently reversed.
In McLeod v. Mudlaff, 2013 WI 76 (July 16, 2013), a majority (5-2) ruled that circuit courts have declaratory judgment power to void marriages after one spouse dies, and marriage annulment is not the only remedy available to void marriages in Wisconsin.
“Annulment is certainly an appropriate remedy to void a marriage when the parties to the marriage are still alive,” wrote Justice David Prosser for the majority, “but it is not the exclusive remedy to challenge the validity of a marriage.”
Specifically, the majority ruled that under Ellis v. Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692, there’s a “fundamental distinction between annulment and a judicial declaration that a marriage is void.”
Laubenheimer was married for 30 years before the 2001 death of her husband, who brought three children into the marriage. The couple did not have children together, and Laubenheimer never officially adopted her husband’s children.
Laubenheimer had executed a will in 1999, which left her estate to her husband unless he died first, in which case her estate would be distributed to the three children.
In 2007, Laubenheimer had a stroke. At some point, McLeod began living with Laubenheimer. The record is unclear about when he moved in, but he claims he began living with Laubenheimer in 2003, well before she suffered the stroke.
In 2008, Laubenheimer was admitted to a hospital for stroke-like symptoms, and two doctors signed a “statement of incapacitation,” which concluded that Laubenheimer lacked the mental capacity to make decisions about her own health.
After two weeks of hospital care, Laubenheimer was transferred to a nursing home. About two weeks after that, McLeod removed her to obtain a marriage license.
Six days later, a court commissioner married Laubenheimer and McLeod, who did not tell Laubenheimer’s family or friends about it. When Patricia Mudlaff found out about the marriage two months later, she sought guardianship and protective placement.
Mudlaff said McLeod was interfering with Laubenheimer’s health care power of attorney by removing her from the nursing home against medical advice.
A court appointed Laubenheimer’s cousin (the POA) as temporary guardian of Laubenheimer. Her sister was appointed to serve as temporary guardian of Laubenheimer’s estate. About a week later, Laubenheimer died.
Several months later, McLeod filed for formal administration of Laubenheimer’s estate and requested his spousal share under Wis. Stat. section 853.12.
Under that statute, a surviving spouse is entitled to a share of the decedent spouse’s estate if the decedent had a premarital will that was never changed. The value of that share is determined after all devises to any children born before the marriage.
McLeod argued that he was the sole heir, despite the 1999 will, because Laubenheimer never adopted her first husband’s children and they weren’t her biological children.
Mudlaff responded that the marriage between McLeod and Laubenheimer was void because Laubenheimer lacked the mental capacity to enter into it. But the circuit court ruled that it could not annul the marriage since Laubenheimer was not alive.
Declaratory Power to Invalidate Marriage
The Wisconsin Supreme Court majority rejected McLeod’s argument that marriages cannot be voided after one spouse dies, because courts have declaratory powers.
Specifically, the majority agreed with Mudlaff that Wisconsin’s Uniform Declaratory Judgments Act (UDJA), Wis. Stat. section 806.04, gives courts the power to void marriages, regardless of whether both spouses are still living.
Section 806.04 says that courts “shall have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”
Section 767.313(2), changed in 2005, specifically prohibits marriage annulments after one spouse has died. But the majority ruled that the UDJA does not conflict.
“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,’” wrote Justice Prosser, noting that a contrary decision would cut off declaratory remedies.
The majority explained that on remand, the marriage will be presumed valid. But Mudlaff can prove the marriage should be voided by presenting clear and convincing evidence that Laubenheimer did not have the mental capacity to enter into the marriage.
Justices Annette Ziegler and Michael Gableman wrote dissenting opinions. Ziegler argued that courts may be able to void marriages after one spouse dies, but “neither case law nor statutes support a court taking such action under the facts of this case.”
Justice Ziegler strongly urged the legislature to determine in what circumstances, if ever, marriages can be voided by courts after one spouse has died.
Meanwhile, Justice Gableman argued that “annulment is the only process for invalidating a marriage other than divorce, as per the legislature’s wishes, and that process cannot be undertaken after the death of a spouse.”