[WSBAPT] Defunct marriage in probate

Thu Oct 7 20:18:28 PDT 2021

  Law Office of
F.ANDREKITA SILVA
____________________________________________  

                                                  October 7, 2021

Dalynne,

I have never tried to make the argument you suggest but it seems like  
it would be a really difficult one to make.

If you have not read In Re Marriage of Himes (1988) , it is a divorce  
case but you might read that case to see if there is any language in  
it or if it gives you any ideas that might help you develop a theory  
or policy argument. 

Before you get to policy arguments, you would have an evidentiary  
barrier. To prove the marriage is defunct, you would need testimony by  
someone. The dead man’s statute would preclude a party with an  
interest from testifying about their transactions with the deceased.  
In the Himes case, the Petitioner was able to get the court to vacate  
a divorce order after Ex-H’s death where she’d been deprived of due  
process by her exH’s fraud. Deceased X had secured an order to publish  
notice, rather than giving ex-W actual notice using fraudulent  
representations to the court. There, Petitioner was able to prove his  
fraud by objective facts placed before the court.

If the kids had evidence that deceased wife had tried to divorce her  
spouse- had done an exhaustive search and couldn’t find him, ran out  
of money so couldn’t ask for an order permitting notice by  
publication, etc. and eventually just abandoned her efforts, AND  
surviving husband admits marriage was irretrievably broken, maybe you  
would at least have some evidence that the marriage was defunct.

But, a defunct marriage requires both parties to have abandoned the  
marriage. Parties are separated for all sorts of reasons, and any  
small benefit to either party for not divorcing each other can  
contraindicate that the marriage was defunct.

Even if you were to show the marriage were defunct, I think you’d need  
to come up with some pretty hefty policy arguments. It seems like the  
court would not want to give a person who never initiated a divorce  
greater rights than a person has who HAS actually initiated a divorce.  
If a party files for divorce, then dies, the marriage abates  
(terminates by operation of law).  So, the surviving spouse, unless  
they murdered the deceased, has the same rights of inheritance and is  
no different than a surviving spouse of a good marriage.  

It seems unfair that the surviving estranged spouse gets to share in  
the deceased’s estate. But, I think it happens all the time.  Maybe  
you can do a bunch of research, develop an argument and then negotiate  
a settlement with surviving husband?

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com

Quoting Roger Hawkes <Roger at law-hawks.com>:

> I think our whole code re wills and probate needs revision; there is  
> no reason to apply the marital interest provision, for example, in  
> the case of folks whose marriage has been in name only for ten  
> years! And there is no longer a reason to have two witnesses ‘in the  
> presence’ of testator when witnessing a will; why not have proof of  
> testator’s intentions provable the same way other important facts  
> are proven??
>
>     
>
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>
>     Roger Hawkes, WSBA # 5173
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Marcus J. Fry
> SENT: Thursday, October 7, 2021 2:34 PM
> TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> SUBJECT: Re: [WSBAPT] Defunct marriage in probate
>
>       
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>    There is law but it is in the context of personal injury claims  
> in attempting to allocate an award between spouse and children.  I  
> haven’t seen it applied to defeat intestacy statute and community  
> property claims.  Washington Practice- Family and Community Law  
> covers it.  Also see Estate of Petelle from Div 1, 2019.
>
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>
> MARCUS J. FRY
> Attorney | Witherspoon • Kelley
> mjf at witherspoonkelley.com | Attorney Profile[1] | vCard[2]
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Dalynne Singleton
> SENT: Thursday, October 7, 2021 2:16 PM
> TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> SUBJECT: [WSBAPT] Defunct marriage in probate
>
>       
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>    Has anyone argued that a “defunct marriage” is enough proof to  
> have the spouse get nothing from estate?  I saw on listserve mention  
> of making this argument.
>
>     
>
>    Separated over 10 years and had no contact and then wife dies  
> with home on which she is sole owner but as her separate property.
>
>     
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>    I’d love to see any briefing or arguments to be made.  I have  
> done some research on defunct marriage but so much is directed to  
> family law, I’m not sure the argument is strong enough to have the  
> spouse get nothing.
>
>     
>
>    There is a retirement which was just started and now has over  
> $200k and husband is trying to get 50% as well as 50% of the net  
> value of the home.
>
>     
>
>    Two adult daughters are outraged by this.
>
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>    /DALYNNE SINGLETON/
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Links:
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[1] https://www.witherspoonkelley.com/marcus-j-fry
[2] https://www.witherspoonkelley.com/s/mfj.vcf
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