Florida law now empowers family members to challenge deathbed marriages. Previously this type of marriage resulted in the decedent’s property going to the recently married surviving spouse rather than to the decedent’s lineal descendants and other family members. Prior to this change, a deathbed marriage was the ultimate weapon for those individuals looking to prey on the accumulated wealth of an elderly single person moving to, or living, in Florida. A marriage prior to a decedent’s death allowed the surviving spouse to enjoy many property rights of the decedent such as the right to live in the family home for life (rent-free) and the right to inherit up to 50-100% of the decedent’s estate, depending upon how his or her will was drafted. At the very least, the surviving spouse was entitled to take 30% of the decedent’s estate under the Florida Elective Share rules. To make matters worse, if the decedent had no will, the new spouse had a preferential right to serve as personal representative of the decedent’s estate.

Under prior Florida law an action challenging a marriage could only be maintained at the death of the first spouse if the marriage was void, as opposed to voidable. That meant, in the case of a void marriage, that the challenge had to be based upon an incestuous or bigamous marriage; a marriage between two people of the same sex; a marriage where one of the spouses lacked requisite mental capacity or if there was a prior marriage, that such a marriage had not been dissolved. A voidable marriage, on the other hand, could only be attacked in a direct proceeding during the lifetime of both spouses. Upon the death of either spouse, a voidable marriage was deemed valid from the outset. Thus a voidable marriage could not be attacked if one of the spouses had died. So, even if a surviving spouse obtained a marriage by fraud, undue influence or duress, he or she was still entitled to all the benefits available to a surviving spouse under Florida law. This new legislation (new Florida Statute 732.805) is a dramatic change in existing Florida law. For the first time in Florida history an “interested party” will have the right to challenge a deathbed marriage. The Florida Probate Code defines an “interested party” as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In the case of a proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate is an “interested party.” The challenge can be based on fraud, duress or undue influence and can be asserted 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 therefore loses the ability to inherit any property rights of the decedent which are normally given to a surviving spouse in Florida.

Now, if a challenge to a deathbed marriage is successful, the surviving spouse is not entitled to any rights or benefits under the Florida Probate Code. In addition, he or she would forgo any rights or benefits under a bond, life insurance or other contract (unless specifically provided for by name); any rights or benefits under a will, trust; any rights under a power of appointment (unless specifically provided for by name) and any immunity from the presumption of undue influence that a surviving spouse might have under Florida law. To prevail, a person challenging the marriage has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress or undue influence. The “interested party” must commence an action under the new law within four years of the decedent’s date of death, unless the claim is barred sooner by adjudication, estoppel or any other provision of the Florida Probate Code. As a defense, the surviving spouse may assert ratification of the marriage. If this defense is asserted, the surviving spouse has the burden of proof, by a preponderance of the evidence.

An insurance company, financial institution or other obligor making a payment to a surviving spouse in accordance with the terms and conditions of its policy or obligation is not liable by reason of this new law unless, before payment, it receives written notice of a claim under the new law. The notice requirement must be very specific, as set forth in the new law, and is generally effective when given, except in the case of a financial institution or insurance company, in which case it is not effective until five business days after being given.

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

It is important to note that this is a new and very dramatic departure from prior Florida law and became effective October 1, 2010. Challenging a marriage between one spouse and his or her new spouse will depend upon all the facts and circumstances. If you have any questions about this article or encounter circumstances which warrant the use of this new law, please reach out to us at SGR.