The Marriage That Shouldn’t Be

By Attorney Gregg Herman
August 9, 2013

I remember learning on the first day of law school that “bad facts make bad law.”

I’m not sure that the recent Wisconsin Supreme Court decision in McLeod v. Mudlaff, Nos. 2011AP1176 and 2011AP1177, is bad law. But the case certainly seems to involve bizarre facts.

The result is a holding that even though a marriage cannot be annulled after the death of a party, it can be voided.

McLeod involved two consolidated estate cases, which were certified by the Court of Appeals.

The cases arose from competing petitions for the appointment of a personal representative and the formal administration of the estate of Nancy Ellen Laubenheimer by Joseph McLeod, Nancy’s surviving spouse, and Patricia Mudlaff, Nancy’s stepdaughter.

Patricia asserted that Nancy’s marriage to Joseph was invalid because Nancy lacked the mental capacity to consent to the marriage. The effect would be to strip Joseph of any inheritance rights.

On Oct. 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 improved.

Nonetheless, McLeod took her out of the nursing home Oct. 27, 2008, to obtain a marriage license, and again on Nov. 3 for a marriage ceremony.

One wonders what type of ceremony was held, but the record is devoid of such information.

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

Finding a Remedy

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 a marriage void where a party has such want of understanding as renders him or her incapable of assenting to marriage.

There is a significant difference between voiding and annulling a marriage. While in both instances it means the marriage never occurred, in an annulment, the court has the authority to order property division and spousal support, which it cannot do when voiding a marriage. It is rare, however, that property division or support are issues in an annulment, given the limited circumstances where they are available remedies.

Justice David Prosser’s majority opinion relied heavily on the Court of Appeals’ rationale from its 2001 opinion in Ellis v. Estate of Toutant, holding that while annulment is the proper remedy for an infirmity where the parties are alive, both common law and Toutant allow the remedy of declaring the marriage void where one of the parties has died.

The state’s high court remanded the case to the circuit court to determine whether Nancy had the capacity to enter into marriage at the time of the ceremony.

Given the facts of this case, it’s not surprising that the court wanted to provide an available remedy. If the facts as alleged by Patricia are true, it would be shocking if Joseph could inherit under these circumstances.

Earlier this year, state justices held in Johnson v. Masters that even while the statute of repose in § 893.40 applies in the family-law context, the court has to interpret the relevant statutes to avoid “absurd or unreasonable results.”

Similarly, the state Supreme Court in McLeod seemed determined to find a statute — and a case — to avoid a possible “absurd or unreasonable” result. So, if an annulment is clearly not an available remedy, allowing the court to void the marriage would make available essentially the same result.

Justices Annette Ziegler and Michael Gableman dissented in separate opinions. While their reasoning differs, they both urged the legislature to consider the law and make any appropriate changes.

While their reading of the applicable statutes and case law is rather compelling, it is inconceivable that, if the situation is as outrageous as it seems — taking an incapacitated person out of nursing home, getting married and then inheriting her estate when she died shortly thereafter — that there would be no remedy available. Again, facts sometimes drive results.

This decision doesn’t end the matter, of course. Patricia must now go back to the circuit court and prove the marriage ceremony should never have been held.

While I cannot speculate on whether she will succeed, the state Supreme Court’s decision gives her a chance.

This article originally appeared in the Wisconsin Law Journal.

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