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It's The Law: Heirs Can Challenge Death Bed Marriage

Question: My 90 year old father got married to a 23 year old dancer while he was in the hospital. He died a few days later. His "wife" is now claiming his estate. Is there anything I can do to stop her?

Answer: Florida law gives a surviving spouse right to much of their deceased spouse's assets, even if they were only married minutes before the spouse died.

Under Florida law, the surviving spouse inherits their spouse's homestead for life, or a 50% outright ownership interest in that property at the survivor's option. If the decedent had no will, the surviving spouse also gets 50% of the decedent's estate, including life insurance and retirement accounts in addition to other assets. If the decedent had a will, the surviving spouse can elect a 30% share, even if the surviving spouse was to get less or nothing under the will. A surviving spouse is also entitled to preference in appointment as Personal Representative to administer the estate, which brings with it the ability to control administration and right to a fee for service as Personal Representative. These rights are strong incentive for some to push for marriage, especially when they know that time is short.

Under Florida's common law from England, heirs are barred from challenging death bed marriages, regardless of the circumstances. This was the law in Florida until the Legislature adopted new Section 732.805 of Florida Statutes. The new statute grants heirs and other interested parties the right to challenge death bed marriages in Florida.

The new law empowers any interested person to challenge a surviving spouse's rights as a defense, objection or cause of action. If the challenge is successful, the surviving spouse is treated as if he or she predeceased the decedent and does not get the benefit or right in issue. The challenger must prove that the surviving spouse procured the marriage by fraud, duress or undue influence. If that is proven, the surviving spouse is barred from those rights and benefits that arise by virtue of marriage or status as surviving spouse unless the decedent and the surviving spouse voluntarily lived together as husband and wife with full knowledge of the fraud, duress or undue influence, or both spouses otherwise subsequently ratified the marriage. Ratification is acknowledgment that the marriage is valid and cohabitation with full knowledge of the facts.

If the marriage is voided, the surviving spouse is barred from the following:

  1. Any rights or benefits under Florida's Probate Code, including elective share, family allowance, preference in appointment as Personal Representative and rights to homestead;
  2. Any rights under a bond, life insurance or other contractual arrangement, unless the surviving spouse is provided for by name in the contract;
  3. Any rights or benefits under a will, trust or power of appointment, unless the surviving spouse is provided for by name;
  4. Any immunity from the presumption of undue influence a surviving spouse may have under state law.

To prevail, a person challenging the marriage must establish the fraud or undue influence by a preponderance of the evidence. That means the scales of justice must be tipped, if ever so slightly, in favor of the challenger. If the surviving spouse raises ratification of the marriage as a defense, the surviving spouse must provide the defense by a preponderance of the evidence.

The winner in any challenge under the statute is entitled to attorney’s fees and costs of litigation. The court may direct payment from a party’s interest, if any, in the estate or enter a money judgment.

Insurance companies and financial institutions are protected. They are not liable for distribution to the surviving spouse unless, before payment, the company receives written notice of a claim under the statute. The statute requires that the notice be specific and include information so that the company can identify the decedent and the account or policy in issue. Actions to challenge these marriages must be started within four (4) years of the decedent’s death, or the action is barred.

Your right to challenge your father’s marriage was created this year. There are no Florida appellate cases. As with any legal issue, the actual facts and circumstances will ultimately control the outcome. You should meet with an experienced attorney to discuss your situation as soon as possible.

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