Capacity to Marry

By Doug Chalgian on December 20, 2012

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Here’s an interesting published Court of Appeals decision that many probate practitioners may have missed, because it came out of a circuit court, but which has significant implications in the arena of financial exploitation of vulnerable adults.

In Estate of Ellen S. Mullin v Rene Marco Duenas, the Court of Appeals looked at an action of annulment of a death bed marriage, brought by the children of the decedent after the death their mother.  It provides a roadmap of how to handle these matters.

Plaintiffs in this action are the children of Ellen Mullin (acting as personal representatives of Ellen’s estate).  Ellen died of cancer, and in her death bed she wed defendant, Duenas.

Supporting the Plaintiff’s case is that Ellen was heavily medicated in her last days, and often confused and disoriented.  Fatal to their case was the fact that the doctors treating Ellen in those final days said that at a time nearly contemporaneous with the marriage, she was alert and oriented; and also that Ellen and Duenas had a long-standing intimate relationship and had lived together (on and off) for several years.

The Plaintiffs asserted two issues: lack of capacity and fraud.

The Court of Appeals found that the personal representatives had standing to challenge the validity of the marriage based on capacity, but that their burden of proof was “clear and positive proof that the marriage was not valid” – a burden they were unable to sustain.

The Court of Appeals found that, although fraud is a basis for an annulment, fraud can only be asserted while the party to the marriage is living.  Accordingly the personal representatives lacked standing.

In my practice I am finding annulment to be an increasingly important cause of action, as marriage becomes a more common tool of financial exploitation of vulnerable adults.  I think what we take away from this case is that these cases are difficult, especially if the married person our client represents is dead.  The burden of proof is high.  But we also can see that in the right situations, these cases have legs and should be considered.

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mm By: Doug Chalgian
Doug Chalgian

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