POST-MORTEM DIVORCE IN MARYLAND
By Fred Franke
Franke, Sessions & Beckett LLC
Recently the Court of Special Appeals held that the personal representative could not bring suit to annul the decedent’s marriage based on fraud. Morris v. Goodwin, ___ Md.App. ___, 2016 W.L. 6248538 (10/26/16).
In Morris, the allegation was that a U.S. Army staff sergeant married the decedent, a college student, for the sole purpose of increasing his military housing allowance. Following the wedding, he returned to his military base and purportedly continued sexual relations with other women. The decedent committed suicide less than one year after the wedding. The personal representative, the decedent’s mother, contended that the fraud induced her daughter to marry and contributed to her death. The Court of Special Appeals held that the personal representative did not have standing to seek an annulment of the marriage based on fraud.
The court held that, if proven, the fraud would only make the marriage voidable not void. The core difference between void and voidable is whether, if the parties consent, the marriage could become valid. Incestuous or bigamous marriages, for example, are void and unable to be cured. A marriage based on fraud, on the other hand, is merely voidable. A personal representative generally lacks standing to seek the annulment of a marriage based on fraud, because “‘voidable’ expresses the idea that the defect, at most, subjects the marriage to direct attack under appropriate procedure during the joint lives of the parties.” Picarella v. Picarella, 20 Md.App. 499, 507-08 N.9 (1974). The right to annulment of a marriage which is voidable is a personal right and the proceedings for annulment must be brought during the lifetime of both parties to the marriage.
The Morris court quotes with approval LeBrun v. LeBrun, 55 Md. 496 (1881), for the proposition that a marriage procured by “abduction, terror, fraud, or duress” can be declared a nullity by virtue of the court’s general jurisdiction in matters of fraud affecting contracts. By lumping together fraud with duress, the Morris court suggests that a personal representative may not challenge a marriage procured by undue influence. Duress or undue influence however, involve the overpowering of the will of a person, something quite different than a fraudulent misrepresentation to induce someone to marry.
Nevertheless, at least one court has lumped undue influence with fraud for standing purposes. In Hoffman v. Kohns, 385 So.2d 1064 (Fla. 2d DCA 1980), the Florida District Court of Appeal for the Second District set aside a will on the basis of undue influence that was executed the day after the decedent’s marriage to his housekeeper. That case had egregious facts: the decedent was experiencing severe memory and cognitive shortcomings, had known the housekeeper for less than a month, and the housekeeper engineered the will to be drafted with her attorney rather than going to the decedent’s attorney of ten years standing. The challenge by the decedent’s nieces and nephews was not successful in proving lack of capacity, but the will was set aside on undue influence. However, because the decedent had capacity, the marriage stood and the housekeeper inherited the decedent’s estate. The Hoffman case held that undue influence creates a voidable marriage and therefore the marriage cannot be collaterally attacked by a personal representative.
A marriage of a person lacking capacity to consent to the marriage who never regains capacity prior to death, on the other hand, should be able to be annulled by a personal representative. Abel v. Waters, 373 So.2d 1125 (Ala. 1979) involved a marriage that was annulled after death by a woman’s personal representative. In that case, the decedent was intoxicated at the ceremony and unable to consent to the marriage and she remained intoxicated and unable to ratify or give consent until her death three months later.
Given the thin line between capacity and undue influence in caveat cases, it would seem logical that a personal representative would be able to challenge the decedent’s marriage not only based on capacity but also by reason of undue influence. If undue influence causes a vulnerable adult to marry and that influence continues until death of the vulnerable adult, one would hope that a personal representative would have standing to seek redress. The law in Maryland, however, is not clear in this regard.