For most of Florida jurisprudence, the children and other heirs of a deceased person in Florida were prohibited from challenging a marriage after the death in Florida probate court.
But stopping a deathbed marriage or a marriage procured by fraud or undue influence is important because of the many spousal rights in Florida that a surviving spouse is entitled to, including elective share, status as a pretermitted spouse, Florida homestead, family allowance and the personal property of the deceased. Even if the marriage lasts for hours or days, a surviving spouse could end up with the homestead, and between 30% and 100% of the other assets of the deceased.
Section 732.805 – Challenge Florida Spousal Rights After Death
In order to stop unfair and unjust deathbed marriages and other abusive arrangements, Florida enacted Section 732.805, entitled Spousal Rights Procured by Fraud, Duress, or Undue Influence.
If the surviving spouse is found to have procured the marriage by fraud, duress or undue influence, all of the spousal rights that the surviving spouse would otherwise be entitled to are eliminated. Any of the beneficiaries and heirs of the estate may bring the challenge to the surviving spouse rights. The challenger has the burden of proof that the marriage was procured by fraud, duress, or undue influence.
Even if the marriage was so procured by fraud or undue influence, the surviving spouse can claim, in defense, that the deceased nevertheless “ratified” the marriage after learning about the fraud, duress, or undue influence. Although there are many ways in which a marriage could be “ratified,” one way would be to consummate the marriage in the traditional way.
The new statute does seem to provide for an attorney fee shifting provision. Therefore, one should not bring a challenge to the marriage unless one is pretty certain of success.
Although the statute does not address the issue, if the marriage is argued to be void because of a complete lack of capacity, the ability to void a marriage for lack of capacity existed under the common law of Florida. It is believed, although not certain, that the ability to void a marriage after death, under the common law if Florida, is still preserved. Nevertheless, until a Florida probate court weighs in, the law is not certain. For a true deathbed marriage, the best practice would likely be to argue that the marriage was void as the deceased lacked capacity, and to also argue that the marriage was voidable under the new statute section 732.805, as being the product of fraud, undue influence or duress.
A portion of the Florida statute on voiding spousal rights due to fraud, undue influence, and duress is reproduced below.
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.
(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.