Most families manage to avoid the headaches and heartaches of probate disputes through careful estate planning. Absent that, diligent adherence to probate protocols, including abiding by the laws of intestacy to distribute assets can also effectively bring the affairs of the deceased to closure. Here, however, is a cautionary tale of how family matters can take unexpected twists and turns.
Let’s Just Tie The Knot…
Absent a will, state laws of intestacy determine the distribution of the assets of the deceased. In most states, this means legally married spouses are at the top of the list, followed by children and other relations. Unfortunately, some probate attorneys have observed “bad actors” leveraging marriage–and the laws of intestacy–to gain control of assets. At Warner Norcross +Judd, David Skidmore writes:
We are increasingly seeing more disputes over the validity of marriages in probate litigation. A recurring fact pattern is that a romantic partner will attempt to orchestrate a marriage to the second partner, who is suffering from some degree of cognitive impairment and perhaps residing in a facility. Instead of obtaining a will through mental incapacity or undue influence, the bad actor in this scenario uses mental incapacity or undue influence to procure a marriage license, expecting to inherit the second spouse’s estate under the law of intestacy. There may be disputes over whether the wedding officiant and others should be admitted to the facility for the purpose of conducting a wedding. When a marriage is performed secretly without the knowledge of one spouse’s family, there may be subsequent litigation over the validity of the marriage brought by a disabled spouse’s conservator or the personal representative of a deceased spouse’s estate.
One such case was recently heard by the Michigan Court of Appeals (Mich Ct App Mar 9 2023) (unpublished). Mental incapacity was not at issue in this case, but the validity of the marriage license was: it had expired a day before the actual marriage occurred. Upon the death of Leroy, the husband, the wife, Sandra, “claimed that she was his surviving spouse for purposes of intestacy,” prompting the personal representative administering the estate to petition “the probate court to determine Leroy’s heirs.” As Skidmore explains:
The probate court conducted a four-day trial. There was conflicting evidence as to whether the parties had intended to enter into a valid marriage….There was also conflicting evidence as to whether the parties had conducted themselves like a married couple after the ceremony, although the great weight of this evidence was against Sandra….Ultimately, the probate court ruled that the marriage was invalid because the couple lacked a valid marriage license. On appeal, Sandra emphasized the fact that the county clerk had accepted the marriage certificate for filing, after it was filled out by the officiant at the wedding. Sandra argued that the certificate was presumptive proof of the fact of the marriage, under Michigan statute MCL 551.18. The appellate court agreed that the presumption applied, but found that the presumption had been rebutted by the proof of the lack of a valid marriage license.
Good To Know
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Rest Assured
Scary stories about the laws of intestacy and the probate process abound, though in essence, probate is merely the public process of settling debts and distributing assets upon death. If a will has been made, the designated executor handles the process in accordance with state probate protocols. Absent a will, the court appoints an administrator who settles affairs based on the state laws of intestacy. It is important to know that though there is nothing inherently wrong with the laws of intestacy, they do tend to pre-date modern family arrangements, and if there is no will, loved ones may end up not benefiting from assets as intended.
Whether settling an estate ultimately falls to a personal representative, executor or administrator, the individual performing in this role is a fiduciary, with legal obligations to protect the interests of the estate and its beneficiaries in accordance with state law. As a guarantee, courts often require a bond, known as a probate, administrator, personal representative or executor bond. As a leading national provider of all types of fiduciary bonds, Colonial Surety makes it easy and efficient to obtain court required bonds. Just get a quote online, fill out the information, and enter a payment method. Print or e-file the bond from anywhere—even before leaving probate court.
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