The Gould Cooksey Fennell Blog

Florida Enacts Deathbed Marriage Law

Florida has long been a popular spot for retirees to spend their later years.  Many are married, but some come after the death of a spouse.  And while Florida takes elderly issues seriously, the state has never had a law that addressed the issue of deathbed marriages.  That all changed in October 2010.

Deathbed marriages—unions that occur when one party is terminally ill—have made the news in recent years.  Anna Nicole Smith, for example.  More recently, there is the case of Standard Oil heiress Anne Terry Pierce McBride, who died in 2005.  McBride married Wolfgang Von Falkenberg only four days before her death, changed her will, and left her entire $50 million estate to him.  McBride’s previous will left a majority of her estate to charity.  While McBride and Von Falkenberg had previously been married, they were divorced decades ago, and the second marriage occurred while McBride was in hospice.  She died two days after the signing of the will that left $50 million to Von Falkenberg.

Prior to October 2010, Florida law generally provided that a husband and wife were immune from any presumption of undue influence.  The principle rationale was to protect the family unit, which almost always includes influence of some kind.

On October 1, 2010, Florida Statute 732.805 took effect.  The new law provides several important changes to existing Florida law around deathbed marriages.  First, the new law provides that a surviving spouse who is found to have procured a marriage by fraud, duress, or undue influence is not entitled any rights or benefits under the Florida Probate Code, including but not limited to, elective share, family allowance, homestead, or preference in the appointment of personal representative.  Additionally, the new law allows the heirs of the deceased spouse to bring a claim in probate court to have the marriage canceled on the grounds of fraud, duress, or undue influence.

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