Deathbed Marriages in Florida: Why This is a Recipe For An Undue Influence and Will Contest Claim Against the Surviving Spouse

Posted By on November 21, 2013

Quick marriages or secret weddings close to someone’s death, particularly when they are of a certain age, aren’t just the stuff of murder mysteries — they happen more often than many people realize; so much so, in fact, that the Florida Legislature actually addressed the issue a few years ago and passed a special law to try and protect ill and elderly people from being manipulated into marriage (and an alternative distribution of their estates upon their death) by opportunistic spouses.

 

This law is commonly referred to as the Florida “Deathbed Marriage” law. Florida Statute 732.805 states (in part, read the full text of the Deathbed Marriage law here):

(1) A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage:

(a) Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

(b) Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement.

(c) Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.

(d) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

(2) Any of the rights or benefits listed in paragraphs (1)(a)-(c) which would have passed solely by virtue of the marriage to a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence shall pass as if the spouse had predeceased the decedent.

What is a Illegal Deathbed Marriage in Florida?

Not every wedding performed shortly before one of the spouses passes away is a marriage to be challenged as fraudulent and wrong.   However, there are situations where an individual is vulnerable to being swayed or conned by a caretaker, nurse, or family friend who persuades the person to enter into a husband and wife relationship with them with the intention of financial reward through inheritance once the individual passes away.

This happens all the time, and many states do not allow will contests to be filed against a surviving spouse after their spouse has died. Illinois, for example, does not allow it. Florida did not provide for this either, until 2010 when Florida Statute 732.805 was passed into law.

Now, in Florida, any interested person (as that term is defined by Florida probate law) has a legal right to file a formal challenge to a Will that has been entered into Florida probate, challenging the surviving spouse’s right to inherit because of alleged fraud, duress, or undue influence of the decedent.

What Happened?

Florida is a haven that attracts people from all over the country, as well as all over the world, as a great place to retire. Our warm climate, beautiful scenery, and large elder population (with accompanying services and benefits targeting this market sector) are all reasons that people move to the Sunshine State. Unfortunately, scam artists are also attracted to Florida because of all of the elder citizens.

And for those with sizable estates, it can be tempting for scammers to try and take advantage of some of these people by inducing them into marriage. Particularly a “deathbed marriage.”

In 2008, the Florida Bar’s Probate and Trust Litigation Committee studied this problem and compiled its findings into a report that helped get Florida Statute 732.805 passed. Florida, the report pointed out, was an enticing place for “deathbed marriage” scams because surviving spouses get great legal benefits here — like homestead rights, among other things. Couple the legal advantages to surviving spouses with the aging population here in Florida, and undue influence is bound to create lots of advantage weddings.

Read that report here, entitled “Subcommittee Report On Challenges To The Validity Of Marriage After The Death Of A Spouse In Probate Proceedings.”

Hannah’s Marriage to Charles Savage as One Example of an Illegal Florida Deathbed Marriage

The report used as one example the Florida Supreme Court case of Savage v. Olsen 9 So. 2d 363 (Fla. 1942):

At some point after the accident, the Defendant, Charles Savage, showed an unusual interest in Hannah. He subsequently proposed marriage, which was performed, but never consummated. Savage lived apart from Hannah after the ceremony, held himself out as a single person, and executed mortgages on property belonging to Hannah without her knowledge.

The Court also noted that Savage had a long criminal record. Savage lived and cohabitated with another woman before and after his wedding to Hannah.

Sixty days after they were married, Hannah died in a car accident when the automobile in which she was a passenger, driven by Savage, plunged into a canal. Savage escaped unharmed and when talking to officers and the funeral director after the accident, he referred to Hannah as a “friend.”

The funeral was held before Hannah’s relatives were informed, and two days after her death, Savage became the administrator of Hannah’s estate and immediately emptied her safe-deposit box. The Florida Supreme Court affirmed the lower court’s ruling that the marriage was void, and stated that Hanna’s mental condition, as well as Savage’s “artful practices” justified the decision.

The Court stated:

“It is true that much of the testimony was in conflict, but it was abundantly shown that the mental condition of Hannah Ford, although she would not be said to be actually insane, made her easy prey to the machinations of Charles B. Savage. Examining together her plight and his artful practices, we think the chancellor was fully justified in the decision he rendered declaring the marriage void. The testimony which he elected to give credit fully substantiated the allegations of the bill of complaint anent fraud of one and incapacity of the other.”

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