Wisconsin Supreme Court Voids a Marriage

By Attorney Gregg Herman
July 17, 2015

As expected, the Wisconsin Supreme Court found a way to void the marriage when it issued its decision yesterday in Laubenheimer v. McLeod.

In the case, Patricia Mudlaff asked the court to declare the marriage of her stepmother, Nancy, to Joseph McLeod void, despite her death.  The effect of such a ruling would have been to strip Joseph of his inheritance rights.

On October 1, 2008, Nancy suffered a stroke, which resulted in a “Statement of Incapacitation,” signed by two doctors, concluding that she was “unable to receive and evaluate information effectively or to communicate decisions” and that she lacked the capacity to make health care decisions.  Twelve days later, she was transferred to a nursing home where she remained until she died, her condition never approving.

Nonetheless, McLeod took her out of the nursing home on October 27, 2008, to obtain a marriage license and again on November 3 for a marriage ceremony.  One wonders what type of ceremony was held, but the record is devoid of such information.

In any event, Nancy died on February 5, 2009.  As she had never had any children, her husband of a little over three months was her sole heir.  Patricia and Nancy’s other stepchildren, heirs under her will, were not amused.

The problem with Wisconsin law is that a marriage cannot be annulled after a death of a party.  Patricia argued however that Wisconsin law can find that a marriage is void where a party has such want of understanding as renders him or her incapable of assenting to marriage.

The Wisconsin Supreme Court held that while annulment is the proper remedy for an infirmity where the parties are alive, both common law and a prior Wisconsin case allow the remedy of declaring the marriage void where one of the parties has died.  Given the facts of this case, it is not surprising that the court adopted this remedy.

This decision does not end the matter, of course.  Patricia must now go back to the Circuit Court and prove that the marriage ceremony should never have been held.

While I cannot speculate on whether she will or will not succeed, the Wisconsin Supreme Court decision gives her a chance.

As it has to – which is why I’m surprised that Justices Ziegler and Gableman dissented.  While I appreciate their reading of the statutes, it is inconceivable that, if the situation is as outrageous as it seems (taking an incapacitated person out of nursing home, getting married, then inheriting her estate when she died shortly thereafter.  Still, Justice Gableman does raise some quite legitimate concerns and I hope the legislature adopts his invitation to examine the procedure.  I also hope that the State Bar Probate Section will be involved in that process.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.