Marriage is supposed to be “until death do us part,” but after one spouse dies, is it possible for a court to declare a marriage invalid (annulled)? It can be happen, as a Nebraska widower recently learned, but only in certain circumstances.

Marriage provides benefits to a surviving spouse. When one spouse dies, the surviving spouse is entitled to receive an elective share of the deceased spouse’s estate. The amount of the share depends on state law, but it is usually around 30 percent. A spouse can claim an elective share even if there is a will that leaves the spouse fewer assets. This can lead to conflict between surviving spouses and other heirs.

If a spouse gets married shortly before he or she dies, questions can arise as to the legitimacy of the marriage. Heirs may attempt to invalidate the marriage to prevent the surviving spouse from recovering from the estate. The heirs can challenge a marriage after one spouse has died only if the marriage is considered “void.” A marriage is void if it wasn’t legally entered into in the first place. Examples of void marriages include cases in which:

• One or both spouses were legally married to someone else at the time of the marriage
• The spouses are too closely related to each other
• One or both of the spouses were under the legal age for marriage
• One or both spouses were mentally incompetent at the time of the marriage

A recent Nebraska case provides an instance of a marriage that was considered void due to incompetence (Malousek v. Meyer, Neb., No. S-20-470, July 30, 2021). Molly Stacey and Steven Greg Meyer began living together in 2009. In 2015, Ms. Stacey was diagnosed with cancer, which eventually spread and her condition deteriorated. Even though she had declared she never planned to marry Mr. Meyer, a few weeks before she died, they were wed. She also named him a joint owner on two bank accounts, changed the beneficiary designations on her other accounts to name Mr. Meyer and his son, and executed quitclaim deeds on her houses to leave them to Mr. Meyer on her death. At the time she was isolated from her children and incoherent.

After Ms. Stacey died without a will, her children went to court, seeking to have the marriage annulled and the property transactions declared void. The children argued that Mr. Meyer unduly influenced Ms. Stacey and that she lacked the mental capacity to make the transactions due to her illness. The Nebraska Supreme Court ruled that the marriage was void because Ms. Stacey was not mentally competent to enter into it. The court set aside the marriage and the financial transactions.

While void marriages can be set aside after one spouse dies, “voidable” marriages cannot. A voidable marriage is a marriage that can be annulled by one party if both spouses are still alive. Courts will generally not cancel these types of marriages after one spouse dies. Examples of voidable marriages, include cases in which:

• One or both spouses were under mental duress
• One spouse misrepresented him or herself
• One spouse was forced into the marriage
• The spouses were intoxicated at the time
• One spouse lied about his or her circumstances

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