A couple, who resided together for 4 years, met with a lawyer to discuss executing wills. The lawyer allegedly advised them it would be cheaper if they simply married. Seven months later, after the woman had suffered her second stroke and had been declared incompetent by her physician, the man removed her from the nursing home and married her in a civil service. When the woman died intestate 3 months after the wedding, her sister and step-children from her first marriage contested the validity of the marriage due to her alleged lack of capacity. If the marriage were invalid, the sister would inherit the $450,000 estate. If the marriage were valid, the husband would inherit. The step-children were listed as the beneficiaries of an unsigned 1999 will. After the Wisconsin Supreme Court held that the marriage could be challenged on the grounds of legal incapacity, the husband and relatives agreed to split the estate.
1. There are many “will substitutes” which include trusts, beneficiary designations, and jointly owned assets. Marriage is not one of them. In 27 years of practice, I have never advised a couple to get married instead of executing wills.
2. Carpe Diem! If you pay for a will in 1999, sign it and let your family know where the original is. If you want to prepare a will in 2008, follow through. If you want to get married instead, get married then not seven months and two strokes later.
3. The Wisconsin marriage statute does not address the ability to void a marriage after someone has died. However, in an era where courts interpret statutes to permit same sex marriage it was easy for the Wisconsin court to create its own rule on voiding a marriage.