Applying Equitable Estoppel To Deathbed Marriages


“Elder abuse, including the financial exploitation of elderly individuals who have become mentally incapacitated is an often well-hidden problem."1

Several recent decisions have highlighted a specific type of elder abuse where a person takes unfair advantage of an individual who lacks the capacity to enter into a marriage or otherwise utilizes fraud and undue influence to secretly marry the individual for the purpose of obtaining a portion of his or her estate at the expense of the intended heirs.

New York Estates, Powers and Trusts Law (EPTL) 5-1.1-A allows a surviving spouse a personal right of election to take a share of a decedent's estate when the parties are in fact married on the date of the decedent's death. A husband or wife is a surviving spouse within the meaning of EPTL 5-1.1-A unless it can be established satisfactorily to the court that any of the grounds for disqualification contained in EPTL 5-1.2 exist.

This article specifically addresses post-death annulment of marriages and an inconsistency in the law based upon a strict reading of the statute. Essentially, under DRL §140, a voidable marriage may be annulled post-death. However, under EPTL 5-1.2, the disqualification statute, status as a surviving spouse and any disqualification from taking an elective share is determined at the time of death of the decedent. Thus, a marriage may be annulled post death, yet the former spouse will still be able to take their elected share of the decedent's estate. A strict reading of the statutes thus leads to an inequitable result.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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