Document Type



Summer 7-24-2012


deathbed marriage, annulment, elective share, community property, intestacy, void marriages, voidable marriages, standing, marital capacity, testamentary capacity, duress, undue influence, fundamental right to marry




Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from such a marriage? In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible does it not? The heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so. How did this rule come about? What, if anything, should we do to change it? This article explores these and other related questions, and proposes a theoretical framework for a model act that would allow heirs and beneficiaries standing to sue to negate the property consequences that flow from a marriage, depending on the level of mental capacity at the time of the marriage. Individuals on their deathbeds have just as much right to marry as anyone, and if competent and under no duress, the parties to the marriage certainly should have protection under the law. Having said that, there is no valid argument for not allowing a decedent-spouse's heirs (those who would take the decedent's property if he or she died unmarried and intestate) and beneficiaries (those who would take under the decedent's valid will, if any, absent a spousal election) the right to challenge the property consequences of a suspect marriage based on traditional grounds that might naturally flow from a deathbed marriage. The current incentives are off kilter. A greedy potential spouse has every incentive to try to find a minister or officer of the law willing to marry them off to a wealthy sick person and no legal incentives not to try it. Upon the death of one of the spouses, the marriage becomes set in stone with no person other than the surviving spouse – no matter how ugly the situation – given standing to seek redress in a court of law. Allowing, in an appropriate way, heirs and beneficiaries to challenge the property consequences of a suspect marriage puts in place the proper disincentives to think twice before attempting to take advantage of one of feeble mind and spirit. It is only reasonable that these poor people, who may well not have the legal capacity to make a contract for the smallest monetary value, and their heirs and beneficiaries should have state protection against a surviving spouse taking some or all of the decedent's property: protection against a surviving spouse who might seem to have few legitimate motives to enter into a deathbed marriage. Just imagine how you would feel losing an expectancy in such circumstances.

Included in

Law Commons