Posted 6 years 100 days ago ago by Danielle Streed
As the baby boomer generation ages and some of them become vulnerable due to senility, physical illness, loneliness and increased dependency, we will undoubtedly become confronted with a whole new concept of exploited marriages in Michigan. These questionable marriages are often referred to as deathbed marriages or predatory marriages and, in most cases, they can be considered a form of elder abuse because they typically involve a vulnerable elderly person who is lured into marrying a younger care giver. Here are some of the common characteristics of an exploited marriage:
The marriage may be kept a secret from the victim’s family;
The marriage is arranged by the predator without the victim’s input or knowledge;
The predator is in many cases the victim’s care giver;
The predator is motivated to gain control of or eventually benefit from the victim’s assets;
The victim’s mental capacity is compromised due to mental or physical illness;
The predator anticipates that the marriage will be short due to the victim’s illness or advanced age.
The problem with Michigan marriage laws is that it is not designed to prevent exploited marriages. Rather the law is developed to protect a person’s right to marriage, the right to preserve the institution of marriage, and even to restrict challenges to a marriage after the death of a spouse.
A marriage that is voidable is considered valid until either the husband or wife files an annulment action and the marriage is formally annulled. A voidable marriage cannot be attacked after the death of the spouse. A marriage that is void means that a marriage never occurred and no marital contract was ever entered into and no marital property rights were created. A marriage may be declared void on any of the following grounds:
One of the parties already has a living spouse;
The party marries a family member;
A party is not mentally competent to enter into a contract;
A party is under 18 years of age; and
The consent of a party is obtained by force or fraud.
Here is where important estate planning and being proactive will benefit and protect the family. If a parent is being cared for by a care giver, either in the home or in a facility, and that parent has clearly displayed signs of mental infirmity, it is important to have that parent evaluated and determined not competent to engage in financial transactions, as well as not of sound mind to enter into a contract. Unfortunately, there is a very low marital standard as it relates to being capable of entering into a marital contract. There are typically 3 levels of transactional competency. The highest level being the mental capacity to enter into a contract, the next level being the capacity to enter into a will or trust and the lowest level being the capacity to marry. Because of this low threshold, it makes it almost impossible for the family to post death annul an alleged exploited marriage based on Michigan statutory exceptions.
One step of being proactive is having the parent deemed not competent of all 3 items and have it signed by a physician stating that the parent is not capable of entering into a contract or preparing a will or trust or even marrying. To be even more proactive, individuals should set up a living trust that ensures that at their death their assets will not pass through probate and further insure that the assets pass to their respective family and not to this “last minute” spouse. A living trust allows you to bypass many of the probate court procedures or protocols and in the case of an exploited marriage, it would most likely prevent the predator from inheriting from the family.