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Fraudulent Marriages and Post-Death Challenges

Tue, Jan 28, 2020 at 11:10AM

Fraudulent Marriages and Post-Death Challenges

Family members can become vulnerable.  This can be hard to accept, but oftentimes those we love fall ill or otherwise reach an advanced age where their mental capacities are diminished.  They do not recognize that they may be a target for someone who is pretending to love them or care for them with the ulterior motive of gaining a quick inheritance.  Whispers of sweet nothings often include outright lies or grossly misleading statements.  Too often I met with clients whose mother or father married a highly unlikely mate during a secret ceremony just a few short weeks before their passing. 

Even if the predatory “spouse” never achieved inclusion in a Last Will and Testament, by virtue of the marriage they are now entitled to certain rights such as an interest in the decedent’s home, and a percentage of the decedent’s total estate.  This adds insult to injury for the child who is often still in the midst of grieving the loss of their loved one.

What about an annulment or a divorce?  Unfortunately, Florida law is clear that an action challenging a marriage can only be maintained after the death of a spouse if the marriage was automatically VOID at the time it was entered.  Undue influence, fraud, or duress can make a marriage VOIDABLE in the future, but they do not make the union automatically void.  For too long this meant a surviving “spouse” who procured a marriage by undue influence, fraud, or duress was entitled to all benefits without the threat of challenge.

Fortunately, Section 732.805 was created to provide a means for beneficiaries to challenge the action of the wrongdoer.  Although the marriage is not technically annulled post-death, if one can prove that it was improperly procured the surviving spouse will be treated as having already passed.  Stated another way, they get none of the benefits typically associated with marriage.  A prevailing party is also entitled to attorneys’ fees which is crucial when it comes to being made whole.

Section 732.805 has a four-year statute of limitations which begins to run from the date of the decedent’s death.  If you believe that a family member was preyed upon or otherwise forced into marriage, I strongly urge you to contact our office in order to better understand your rights and remedies.  


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