Scam Marriages of Elders | Voidable or Not?

Rob Robertson, Family lawyer from Austin, Texas provides as a follow-up to a recent post about scam marriages of elders, the following statute from Texas. [Prior post: "Predatory Marriage: Do You Know Where your Parent Is?"]  As I receive statutes from lawyers in states where this has been addressed, I will continue to provide them to you. It is interesting that the Texas statute was enacted in 2007. Perhaps Michigan should consider a law similar to this. What do you think?

Texas Probate Code
 
Sec. 47A.  MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.  (a)  If a proceeding under Chapter 6, Family Code, to declare a marriage void based on the lack of mental capacity of one of the parties to the marriage is pending on the date of death of one of those parties, or if a guardianship proceeding in which a court is requested under Chapter 6, Family Code, to declare a ward's or proposed ward's marriage void based on the lack of mental capacity of the ward or proposed ward is pending on the date of death of the ward or proposed ward, the court may make the determination and declare the marriage void after the decedent's death.  In making that determination after the decedent's death, the court shall apply the standards for an annulment prescribed by Section 6.108(a), Family Code.
(b)  Subject to Subsection (c) of this section, if a proceeding described by Subsection (a) of this section is not pending on the date of a decedent's death, an interested person may file an application with the court requesting that the court void the marriage of the decedent if, on the date of the decedent's death, the decedent was married, and that marriage commenced not earlier than three years before the decedent's date of death.  The notice applicable to a proceeding for a declaratory judgment under Chapter 37, Civil Practice and Remedies Code, applies to a proceeding under this subsection.
(c)  An application requesting that the court void a decedent's marriage authorized by Subsection (b) of this section may not be filed after the first anniversary of the date of the decedent's death.
(d)  Except as provided by Subsection (e) of this section, in a proceeding brought under Subsection (b) of this section, the court shall declare the decedent's marriage void if the court finds that, on the date the marriage occurred, the decedent did not have the mental capacity to:
(1)  consent to the marriage;  and
(2)  understand the nature of the marriage ceremony, if a ceremony occurred.
(e)  In a proceeding brought under Subsection (b) of this section, a court that makes a finding described by Subsection (d) of this section may not declare the decedent's marriage void if the court finds that, after the date the marriage occurred, the decedent:
(1)  gained the mental capacity to recognize the marriage relationship;  and
(2)  did recognize the marriage relationship.
(f)  If the court declares a decedent's marriage void in a proceeding described by Subsection (a) of this section or brought under Subsection (b) of this section, the other party to the marriage is not considered the decedent's surviving spouse for purposes of any law of this state.

Added by Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 4.01, eff. September 1, 2007.

Brought to you by:
Rob V. Robertson, Attorney
13740 Research Boulevard, Suite J5
Austin, Texas 78750-1832
Phone: (512) 335-0208 begin_of_the_skype_highlighting            (512) 335-0208      end_of_the_skype_highlighting
Fax: (512) 219-1150

Fellow, College of the State Bar of Texas
American Bar Association member since 1971

Comments

[James P. Ryan]

Jeanne:

Interesting statutory approach, for sure. Most domestic relations actions cannot survive the death of a party. See Tiedman v Tiedman, 400 Mich App 571; 255 NW2d 632 (1977). Some domestic relations actions (such as annulment and affirmation) may survive the death of a party (i have no citations for you on that statement). See MCL 600.2921 (injury/death), and MCR 2.202(A). If the action survives, a substitution of parties must be prepared.

The Texas statute seems to clarify only that such an action can continue after the death of a party. It also appears to be continued as a probate court action (which may be a family court action there; I do not know). I think that the approach should be considered in Michigan, but I do not know if a pending action should continue in our family division, or should be "transferred" to probate, nor do I know whether a post-death action should be filed in family or probate court.

I suspect our probate courts have more experience with the actual issues these actions would raise, and it might be better for them to be filed and heard there.

/s/ Jim Ryan, Plymouth