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
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
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
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
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