STEPDAUGHTER VS. STEPFATHER: FIGHTING OVER MOM’S ESTATE, HER PROBATE AND EVEN HER LAST MARRIAGE— AFTER HER DEATH-recent Wisconsin Supreme Court case sheds light on stepchild-stepfather probate lawsuit attacking marriage

Who will control Mom’s estate and all her money? Her daughter or her husband?

This is the question posed by a very recent probate lawsuit that wasn’t just fighting over an estate, or a lot of money. It also was an inheritance dispute over whether Mom was validly married to a man when she died. Of course, this lawsuit questioning whether Mom’s last marriage was void or not occurred AFTER Mom’s death !

Mom dies. She has a daughter from her first relationship. Mom also has a husband. Mom’s latest husband —who is NOT daughter’s father– files probate papers seeking to administer Mom’s estate. Latest husband wants an inheritance from Mom’s estate as Mom’s surviving spouse. Latest husband wants to be appointed the executor of Mom’s estate, since, husband claims, he is the surviving spouse of Mom and was married to Mom at the time of Mom’s death. Sounds simple enough, right?

Not so fast ! Step in step-daughter!

The daughter of the (now dead) Mom also files papers with the probate court and says that she wants to be appointed to run Mom’s estate: daughter wants to be executor. What does daughter say about Mom’s latest husband?

What else? Since Mom’s latest husband is not daughter’s father, daughter attacks Mom’s marriage to Husband. This is a probate case, or an estate lawsuit, pitting step child against stepfather. Classic probate litigation.

Remember: Husband is daughter’s stepfather. Daughter is Husband’s stepdaughter. So, you can see the probate “fight” being set up. Daughter and Mom’s latest husband are only related by marriage! There’s no blood there. Now, the only thing linking stepdaughter and stepfather is: money !! They both want to run Mom’s estate and they both want to inherit from the estate. What does daughter do about Mom’s marriage to stepfather? Try to have the marriage declared void!

That’s right. Daughter files papers with the probate court stating that Mom’s marriage to Mom’s husband is void! Why? Mom lacked the mental capacity to get married, at the time of her marriage to her latest husband.

The issue before the Supreme Court of Wisconsin in this recent probate case was whether the stepchild, the stepdaughter, could attack or challenge the validity of her Mom’s marriage after Mom’s death.

Often, in Florida probate litigation, this is done by filing for declaratory relief: asking the Florida probate court to make a declaration of rights. It’s also referred to as filing a declaratory judgment action in Florida. The principal issue in this recent Wisconsin probate case is whether a court has the authority to declare a marriage void after the death of one of the parties to the marriage. The Wisconsin Supreme Court held that a declaratory judgment action may be used to challenge the validity of a marriage even after the death of one of the parties to the marriage. Congratulations stepchildren everywhere ! You now have rights in Wisconsin to sue your stepfather or stepmother in an estate action after your mom or dad dies.

What about Florida? Well, in Florida, a marriage is a contract. And if a person does not have the mental capacity to enter into a contract, it can be set aside, or declared void. But wait !

What if a money-chasing person forces someone to marry them just to get their money?

Florida has a specific statute in the Florida Probate Code which deals with this: Florida Statute Section 732.805 (re-published below at the end). This Florida estate statute deals with challenging a marriage in Florida when a marriage is procured by fraud, duress or undue influence–after the death of a Florida resident.

So, stepchildren take note: you can sue your stepfather or stepmother in Florida if you believe your stepparent married your mom or dad improperly. Probate litigators in Palm Beach and Broward County, Florida are familiar with this law. Many times, the worlds of marriage and probate, or Florida estate law, collide.

Below is the Florida statute. If you want to read what else the Wisconsin Supreme Court said about the marriage and the probate, email michelle@pankauskilawfirm.com.

732.805 Spousal rights procured by fraud, duress, or undue influence.-

(1)  A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage:

(a) Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

(b) Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement.

(c) Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.

(d) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

(2)  Any of the rights or benefits listed in paragraphs (1)(a)-(c) which would have passed solely by virtue of the marriage to a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence shall pass as if the spouse had predeceased the decedent.

(3)  A challenge to a surviving spouse’s rights under this section may be maintained as a defense, objection, or cause of action by any interested person after the death of the decedent in any proceeding in which the fact of marriage may be directly or indirectly material.

(4) The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. If ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses.

(5) In all actions brought under this section, the court shall award taxable costs as in chancery actions, including attorney’s fees. When awarding taxable costs and attorney’s fees, the court may direct payment from a party’s interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both.

(6) An insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless, before payment, it received written notice of a claim pursuant to this section.

(a) The notice required by this subsection must be in writing and must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice. Permissible methods of notice include first-class mail, personal delivery, delivery to the person’s last known place of residence or place of business, or a properly directed facsimile or other electronic message.

(b) To be effective, notice to a financial institution or insurance company must contain the name, address, and the taxpayer identification number, or the account or policy number, of the principal obligee or person whose life is insured and shall be directed to an officer or a manager of the financial institution or insurance company in this state. If the financial institution or insurance company has no offices in this state, the notice shall be directed to the principal office of the financial institution or insurance company.

(c) Notice shall be effective when given, except that notice to a financial institution or insurance company is not effective until 5 business days after being given.

(7)  The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or equity.

(8)  Unless sooner barred by adjudication, estoppel, or a provision of the Florida Probate Code or Florida Probate Rules, an interested person is barred from bringing an action under this section unless the action is commenced within 4 years after the decedent’s date of death. A cause of action under this section accrues on the decedent’s date of death.