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Wisconsin Court Permits Challenge to Marriage Based on Incapacity

By Harry S. Margolis

In the case of Estate of Laubenheimer, the Wisconsin Supreme Court recently permitted the stepchildren of Nancy Laubenheimer to challenge the validity of her marriage to Joseph McLeod based on her incapacity at the time of the marriage.

Nancy was married to her husband, Luke, for more than 30 years. In 1999, she executed a will giving the bulk of her estate to Luke’s children, who she had never adopted. In 2003, Luke passed away. At some point after that, Joseph McLeod moved in. By October of 2008, Nancy had moved to a nursing home and in November, Joseph took her out of the nursing home twice, first to get a marriage license and a second time to get married.

By February of 2009, Nancy’s stepdaughter, Patricia Mudlaff, had petitioned for guardianship and had a medical opinion from Nancy’s doctor saying he did not believe she was competent. Nancy passed away while the guardianship petition was pending.

Both Joseph and Nancy’s stepchildren filed for probate, Joseph arguing that his marriage invalidated Nancy’s 1999, and the stepchildren arguing that it was still valid because Nancy was not competent to agree to marry Joseph, so the marriage should be invalidated. It appears that under Wisconsin law, if no will exists, the entire estate will go to Joseph because the stepchildren would have no rights since they were never adopted.

The question before the Wisconsin Supreme Court was whether the marriage could be challenged after Nancy’s death. It answered yes, but sent the case back to the trial court giving the stepchildren the burden of proving that Nancy’s lacked capacity at the time of her marriage to Joseph.

This case is not unusual in terms of late-arriving “friends” coming into the picture to disrupt longstanding estate plans. It’s not unusual for widows and widowers to develop relationships with new partners after the death of a spouse. However, usually these surviving spouses end up in front of lawyers and execute new wills and trusts favoring their new partners. Marriages do also occur, but rarely after moving to a nursing home.

Whether these relationships appear “appropriate” to other family members depends a lot on the respective ages, dependency and financial circumstances of the two people. It can be difficult to understand any relationship from the outside. And it can be difficult to intervene, since seeking guardianship or conservatorship may lead to a rupture in the family.

The best way to ensure that marital assets ultimately stay in the family is through the use of trusts. If Luke had left some or all of his estate in trust for Nancy’s benefit, to pass ultimately to his children, and named a third party as trustee, then those assets would have been protected no matter what decisions Nancy made in the future. This is especially important in cases of second marriage where children of the deceased spouse have no blood relationship to the surviving spouse.

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