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Can You Challenge a Marriage After Death?

In most states, you can challenge a marriage after death, but only a marriage that was “void.”  A marriage that was “voidable” usually cannot be challenged after death.  Some states allow beneficiaries of an estate to challenge the status of a surviving spouse to deny the surviving spouse the benefits of having been married to the deceased, without having to declare the marriage itself void.

Why Would You Want to Challenge a Marriage After Death?

The primary reason to challenge a marriage after death is to attempt to deny the surviving spouse the benefits of being a surviving spouse, typically the elective share or the benefits of being a pretermitted spouse.

Most states have an elective share, which awards the surviving spouse a percentage of all probate and non-probate assets.  Each state has a different elective share calculation, but 30% of the estate is fairly common.

A pretermitted spouse is a spouse who was married to the decedent after the decedent made his of her last will and testament.  In most states, a pretermitted spouse is entitled to an intestate share of the estate, typically 50%.

In a typical situation, the adult children of the deceased would want to challenge a very late in life marriage, where the decedent may have been mentally diminished and/or the circumstances of the marriage are suspicious, for example a marriage to a caregiver.  By challenging the marriage, the beneficiaries of the estate would hope to deny the purported surviving spouse a significant share of the estate.

What is a Void Marriage?

A void marriage is a marriage that was not valid from the outset.  Void marriages include:

  • Bigamous marriage (one spouse already married to someone else)
  • One spouse was mentally incompetent
  • Marriage was illegal.  Examples include spouses who are too-closely related (brother and sister), and same sex marriage, depending on the timing of the marriage and the jurisdiction where the marriage took place.

In most jurisdictions, a beneficiary of the estate or the personal representative of the estate can seek to have a void marriage be declared void and of no effect as far as the probate administration is concerned.

What is a Voidable Marriage?

A voidable marriage is a marriage that is not void from the outset, like a bigamous marriage, but a marriage that can be set aside at the option of a party to the marriage, typically in an annulment proceeding.  Examples of voidable marriages include:

  • Mental defect (not quite total metal incompetence)
  • Duress
  • Mistake
  • Fraud
  • Lack of Consent
  • Intoxication

There is no state that allows a voidable marriage to bet set aside after the death of one of the spouses (as far as we know, at the writing of this article).  A voidable marriage can be “ratified” in most states, meaning that the marriage can no longer be set aside.  Typical ways in which a marriage can be ratified include living together as husband and wife, or engaging in certain “adult” activities.

Can Surviving Spouses Rights Be Denied Without Voiding the Marriage?

Yes, under a growing trend in the law to combat elder abuse, surviving spouse benefits can be set aside in some states without having to void the marriage.  Some states, such as Florida, have enacted statutes to allow family members to attempt to deny a surviving spouse his or her benefits of the marriage was procured under circumstances that would give rise to a voidable marriage.  Other states, such as Maryland, see judge-made law, typically relying on equitable principles, to deny spousal benefits.

Surviving Spouse Rights

Surviving Spouse Selector

Will Contest Guides

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Find Your Florida Probate Star

Orange County (Orlando)

Philip W. Gunthert

Broward County (Ft. Lauderdale)

Natasha M. Dalton

Duval County (Jacksonville)

Long H. Duong

Hillsborough County (Tampa)

R. Todd Burbine

Sarasota County

Dawn Bates-Buchanan

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Matthew Weidner

Lee County (Ft. Myers)

Scott Kuhn

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Stewart J. Levin

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Merwyn J. Miller

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Fred W. Edwards

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Naomi Stal

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Sally Bergman

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Thomas Bonte

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Priscilla Madrid

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San Antonio

Gilbert Vara, Jr.


Grace P. Shoemakers


Steven S. Boss

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Lorenza Cigarroa

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Cyrus Shaw

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Anthony Nigro


Inna Fershteyn

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Ruth P. George