According to Florida Law, When Can the Right to Marry be Taken Away?

If I am subject to a guardianship in Palm Beach, can I still get married? What should your guardianship lawyer know about the right to marry and guardianship litigation? What is Florida Statute, Section 744.3215? You may want to read, Smith v. Smith, a March 2, 2016 Fourth District Court of Appeal opinion.

Smith v. Smith was a March 2, 2016 opinion from the Fourth District Court of Appeal. This Florida guardianship case dealt with a marriage between a person and a Ward. Here, a gentleman was declared to be incompetent or incapacitated. Court appointed counsel was appointed to represent him, and rights were taken away from him. In Florida, if someone is found to be incapacitated or incompetent, a probate court judge will determine what rights should be removed from a Ward and what rights a Ward may retain. Here, the Ward’s right to contract was taken away so his right to marry became “subject to court approval.” This is according to Florida Statute 744.3215(2)(a).  Restrictions on the right to marry is very common in a Florida guardianship setting. The Ward and the appellant married without the court’s consent, and the guardian of the Ward petitioned to annul the marriage. The guardian was successful in his petition and the marriage was annulled. Click here to read the entire case.

Florida Statute 744.3215 and Marriage

This statute outlines the rights a person determined incapacitated retains and which rights can be removed. Florida guardianship lawyers know that subsection (2)(a) of this statute provides:

(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:

(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.