A couple, who resided together for 4 years, met with a lawyer to
discuss executing wills. The lawyer allegedly advised them it would be
cheaper if they simply married. Seven months later, after the woman
had suffered her second stroke and had been declared incompetent by her
physician, the man removed her from the nursing home and married her in a
civil service. When the woman died intestate 3 months after the
wedding, her sister and step-children from her first marriage contested
the validity of the marriage due to her alleged lack of capacity. If
the marriage were invalid, the sister would inherit the $450,000
estate. If the marriage were valid, the husband would inherit. The
step-children were listed as the beneficiaries of an unsigned 1999
will. After
the Wisconsin Supreme Court held that the marriage could be challenged
on the grounds of legal incapacity, the husband and relatives agreed to
split the estate.
Several points:
1. There are many
"will substitutes" which include trusts, beneficiary designations, and
jointly owned assets. Marriage is not one of them. In 27 years of
practice, I have never advised a couple to get married instead of
executing wills.
2. Carpe Diem! If
you pay for a will in 1999, sign it and let your family know where the
original is. If you want to prepare a will in 2008, follow through. If
you want to get married instead, get married then not seven months and
two strokes later.
3. The Wisconsin marriage statute does not
address the ability to void a marriage after someone has died. However,
in an era where courts interpret statutes to permit same sex marriage
it was easy for the Wisconsin court to create its own rule on voiding a
marriage.
