Wisconsin Supreme Court Finds Marriages Can Be Voided After Death

AsI have previously discussed, Joseph McLeod secretly married Nancy Laubenheimerbefore she died.  He later filed foradministration of her estate and requested his spousal share.  Despite the daughter’s objection that themarriage was void due to lack of mental capacity, a Wisconsin circuit courtruled in McLeod’s favor because a marriage cannot be annulled after a spouse hasdied.

TheWisconsin Supreme Court majority disagreed that marriages cannot be voidedafter a spouse dies because of Wisconsin’s Uniform Declaratory JudgmentsAct.  Under section 806.04, “[courts]shall have the power to declare rights, status, and other legal relations whetheror not further relief is or could be claimed.” On remand, the marriage will be presumed valid, but can be voided withclear and convincing evidence of Laubenheimer’s lack of mental capacity.

See Joe Forward, Courts Can Void Marriages After One SpouseDies, Supreme Court Concludes, State Bar of Wisconsin, July 29, 2013.

Special thanks to Naomi Cahn (JohnTheodore Fey Research Professor of Law, George Washington University School ofLaw) for bringing this article to my attention.