Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, August 22, 2013

Wisconsin Supreme Court Finds Marriages Can Be Voided After Death


As I have previously discussed, Joseph McLeod secretly married Nancy Laubenheimer before she died.  He later filed for administration of her estate and requested his spousal share.  Despite the daughter’s objection that the marriage was void due to lack of mental capacity, a Wisconsin circuit court ruled in McLeod’s favor because a marriage cannot be annulled after a spouse has died.

The Wisconsin Supreme Court majority disagreed that marriages cannot be voided after a spouse dies because of Wisconsin’s Uniform Declaratory Judgments Act.  Under section 806.04, “[courts] shall have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”  On remand, the marriage will be presumed valid, but can be voided with clear and convincing evidence of Laubenheimer’s lack of mental capacity.

See Joe Forward, Courts Can Void Marriages After One Spouse Dies, Supreme Court Concludes, State Bar of Wisconsin, July 29, 2013.

Special thanks to Naomi Cahn (John Theodore Fey Research Professor of Law, George Washington University School of Law) for bringing this article to my attention.


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