Mental Capacity and Marriage in New York, Part 2: Surviving the Surviving Spouse

In New York, a person is considered a surviving spouse even if the marriage is subsequently annulled or voided.  This is particularly problematic where a sham marriage has occurred, such as when a caregiver marries a person with known dementia.   Under the current law in New York, even if the marriage was annulled after the death of the mentally incompetent spouse, the surviving spouse may still claim his/her right of election against the estate.  This may have the effect of nullifying the decedent's Will provisions or intestate distributions.

The issue is complicated in New York by the fact that there are several statutes that touch upon the issue of mental capacity and marriage.  Together they create a patchwork of referring statutes that nonetheless leave open the possibility that a surviving spouse from a voidable marriage may still take against the estate.

Domestic Relations Law §7 provides that a marriage contracted between two people where one person "is incapable of consenting to a marriage for want of understanding" is deemed "void from the time its nullity is declared by a court of competent jurisdiction."  In other words, such a marriage is voidable, that is, it remains valid until such time as a court declares it void.  When a court declares such a marriage void, then it has the effect of being void from its beginning.  Voidable marriages are distinguished in the law from void marriages, such as incestuous marriages.  These are considered void from the start, and require no judicial action to render them void. 

The Domestic Relations Law § 140 [c] provides that "[a]n action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage"

Nevertheless,  EPTL 5-1.1-A defines a "surviving spouse" as having a right of election against the deceased spouse's estate "unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that: (1) A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage (. . .) was in effect when the deceased spouse died," or that in the instant case "(2) The marriage was void as incestuous under section five of the domestic relations law, bigamous under section six thereof, or a prohibited remarriage under section eight thereof " (EPTL 5-1.2 [a]).  There are no provisions that address what happens to the surviving spouse's right of election if the marriage is annulled by a court due to the diminished capacity of the deceased at the time of the marriage.

As Presiding Judge Prudenti noted in Campbell v Thomas (2010 NY Slip Op 02082 [2d Dept 2010],   "New York, however, does not yet have a statute specifically addressing a situation in which a person takes unfair advantage of an individual who clearly lacks the capacity to enter into a marriage by secretly marrying him or her for the purpose of obtaining a portion of his or her estate at the expense of his or her intended heirs. When a marriage to which one of the parties is incapable of consenting due to mental incapacity is not annulled until after the death of the nonconsenting party, a strict reading of the existing statutes requires that the other party be treated as a surviving spouse and afforded a right of election against the decedent's estate, without regard to whether the marital relationship itself came about through an exercise of overreaching or undue influence by the surviving party. On this appeal, we have occasion to consider whether the surviving party may nonetheless be denied the right of election, based on the equitable principle that a court will not permit a party to profit from his or her own wrongdoing."

In  Campbell v Thomas, New York's Second Department addressed the issue of mental capacity with respect to sham marriages.   In February 2001 Nancy Thomas left for a well-deserved one-week vacation, leaving the care of her 72 year-old Alzheimer-suffering father Howard in the care of Nidia Colon whom Nancy hired.  Unbeknowst to Nancy, Nidia married Howard during Nancy's vacation.  She then had valuable assets transferred into her name, specifically putting her name as joint owner of Howard's $150,000 bank account, and naming herself as sole beneficiary of Howard's New York City Teachers' Retirement System account then valued at $147,000.

Howard Thomas died in August 2001.  In November 2001 Nancy and her brothers Christopher and Keith commenced an action in Supreme Court asking that the court declare Nidia's marriage to Howard as null and void, as well as the subsequent transfer of assets.  In their pleadings, they alleged undue influence, conversion, and fraud and moved for summary judgment.  On October 1, 2004 the Supreme Court denied the plaintiffs' motion for summary judgement.  The Thomas children appealed.

The Appellate Court for the Second Department heard the appeal and found that the Thomas children had succeeded in demonstrating that Howard "lacked the capacity to understand his actions before his marriage, and that his mental state only diminished thereafter" (Campbell v Thomas, 36 AD3d 576, 576 [2007]).  The court reversed the Supreme Court and granted the plaintiffs' motion for summary judgment.  Further, the court sent back the matter to the Supreme Court "for the entry of a judgment declaring null and void (1) the marriage between the defendant Nidia Colon Thomas and the decedent Howard Nolan Thomas, (2) a change in beneficiary in Howard Nolan Thomas' Teacher's Retirement System of the City of New York account, and (3) a change in the ownership of Howard Nolan Thomas' Citibank accounts" (id.).  The Supreme Court so ordered on June 21, 2007.  Nidia Colon Thomas appealed.

In her appeal, Nidia alleged  that, under the applicable statutes, even if the marriage had been annulled, she was still considered the surviving spouse.  As such, she was entitled to the spousal elective share of Howard's estate.  Since the marriage to Howard had been annulled almost six years after his death, the strict application of the statutes in question would have resulted in Nidia having a claim to the greater of $50,000 or one-third of the net estate.

However, the court demurred from such a strict application of the statutes on the principles of equity and public policy, so that "(n)either in criminal nor in civil cases will the law allow a person to take advantage of his own wrong" (Diaz v United States, 223 US 442, 458 [1912], quoting Falk v United States, 15 App DC 446, 460 [1899]).  Due to her overreaching and undue influence in marrying Howard, the court denied Nidia the benefit of her marriage to Howard.  Through her conduct, the court found that she had forfeited any benefit that stemmed from her marriage so that she would not be unjustly enriched.

In my next installment, I will examine another case where the mental capacity of one spouse was the determining factor.  I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

Mental Capacity and Marriage in New York, Part 1: Background to the Issue

In New York, a person is presumed to have the mental capacity to marry.  But the standard that defines the mental capacity to marry is very low.  The mental capacity required to marry is lower than testamentary capacity, or the capacity to make a Will.  In turn, testamentary capacity is lower than the mental capacity required to execute a contract.  To put this into perspective, New York requires greater mental capacity to sign an apartment lease than it does to marry someone.

The U.S. Constitution also protects an individual's right to marry.  The U.S. Supreme Court has affirmed that the right to marry is a fundamental right.  In Loving v. Virginia, 388 U.S. 1, 12 (1967), the Court held that the Due Process Clause includes a constitutional right to marry because "freedom to marry has long been recognized as one of the vital personal rights essential to the pursuit of happiness by free men."  In addition, the Full Faith and  Credit Clause in Article IV requires states to credit the "public Acts, Records, and judicial Proceedings" of sister states, including marriage.

A marriage in New York results in two separate outcomes:  the marriage itself, and the property consequences that flow from the marriage.   As we will see in this series, there is a loophole in the law that has permitted some unscrupulous individuals to take advantage of elderly individuals with diminished capacity.  That is because, while the marriage itself may be annulled or broken, the property consequences of marriage are not necessary severed as a consequence.  As we will see in this series, that can result in unintended estate consequences for heirs and distributees, particularly in the area of  so-called "deathbed" marriages.

Arguably,  the property rights that flow from marriage are much greater than they are for signing an apartment lease even though the mental capacity required to enter into a marriage is significantly lower.  Federal property rights that flow from marriage include such things as Social Security survivor benefits for a spouse, and spousal survivorship rights for qualified retirement plans under the Employee Retirement Income Security Act (ERISA) that can only be waived in writing.

Among the New York State property rights for spouses is the right to title property in a tenancy by the entirety.  Neither spouse can sell or diminish the 100% share that each owns without the consent of the other.  Should a creditor obtain a lien on one spouse’s interest in the property, the lien will only survive if the debtor spouse is the surviving spouse.  Otherwise, the lien is extinguished with the death of the debtor spouse.  Moreover, the property cannot be reached in a bankruptcy proceeding.   New York also has an elective share statute, meaning that a surviving spouse can elect to one-third of the decedent spouse's estate against the decedent's Will if there is surviving issue, or one-half of the property if there is no issue.  Even if there is no Will, New York's intestacy statutes provide that a surviving spouse will receive at least one-third of the decedent's property.

In New York, a marriage can be void from the start (ab initio) due to such reasons as bigamy or an incestuous marriage.  In such a case, the marriage is a legal nullity:  it never existed from the start.  The spouse, the State, or an interested third party can attack the marriage directly or collaterally in court on the ground that it is void.  The attack can even take place after the death of one or both spouses.  Note that diminished mental capacity is not a ground for voiding a marriage in New York.

A voidable marriage is valid for any civil purpose unless it it attacked by one of the spouses in an action for annulment. The grounds for deeming a marriage as voidable include fraud, duress, temporary or permanent mental incompetence, undue influence, and sham. As concerns mental incompetence in the case of a voidable marriage, Domestic Relations Law § 140 [c] provides that "[a]n action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage."

Even if a third party should succeed in proving that there was sufficient evidence of diminished capacity before the marriage took place (for instance, with documented medical evidence showing dementia), the surviving spouse of an annulled marriage may still take against the Will under the right of election or under intestacy. The property stakes are high when one enters into a marriage. They are even higher for the children of aging parents with diminished capacity who find themselves (and their property) prey to unscrupulous persons who will marry them (sometimes in secret) in order to obtain the federal and state property benefits that flow from marriage.

In this series, we will look at how New York courts have dealt with the issue of mental capacity and marriage, especially in cases where the results have been egregious.   I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.