Marriage of Fools

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Fools can marry, but they cannot make a last will and testament.  To state the principle more precisely, the mental capacity required to enter into a legally binding marriage is lower than the mental capacity required to execute a valid will.  A frequently-cited case on point is Hoffman v. Kohns, 385 So. 2d 1064 (Fla. App. 1980).  In that case, Mr. Kohns, a man in his 80’s, was “frail and feeble, disoriented at times, forgetful, sometimes hostile and irate, suspicious and paranoid.” Id. at 1066.  He married his housekeeper (whom he had known for one month) on Day X. On Day X+1, the man executed a will in favor of his new wife. The District Court of Appeal of Florida, Second District, made no distinction between Mr. Kohns mental state on Day X and Day X+1.  The court upheld the trial court’s finding that the will had been procured by the wife’s undue influence, but it also ruled that the evidence “was sufficient to support the court’s conclusion that Kohns was competent to marry appellee.”  Id. at 1069.  Thus, notwithstanding the fact that the testator had the same mental state on both days, the marriage was valid but the will was not.

In my view, the law is incorrect in concluding that the mental capacity needed to marry is lower than that needed to make a will.  The decision to marry is, without question, intensely personal, but its personal nature should not in any way diminish the threshold showing of mental capacity that must be made. Marriage is a decision with significant legal consequences, especially with respect to property.  Among the legal consequences  of marriage is the creation of a surviving spouse’s right to an elective share of the decedent’s estate.  Both marital status and the provisions of a will impact what assets will be available to whom after a decedent’s death.  Absent some change in mental state, then, it is illogical to respect someone’s decision to marry on Day X and to disregard the disposition he makes in his will on Day X+1.  The mental capacity necessary to enter into a legally binding marriage should be the same as the mental capacity necessary to execute a valid will.

-Bridget Crawford

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0 Responses to Marriage of Fools

  1. bob coley jr says:

    I would supose this disparity is designed to prevent someone with an unscrupulous intent from taking advantage of someone with a diminished capacity yet to allow the pursuit of happiness. Unfortunatly it does nothing to deal with the many legal problems that marriage and divorce or death of a spouse creates because of the jumble of laws in this area of human existance. I was informed that creditors do not recognize separation or divorse agreements (properly and legaly executed) as legaly binding with respect to debt. Maybe I was just being bullied but the law was deffinatly in favor ceditors even if it was just hard to dicern the truth. Maybe marriage should be legaly more cumbersum to accomplish or the legal ramifications of it should be revisited and redesigned for greater equity in its practice.

  2. JimCahill says:

    Bravo Bridget! However, i do not believe that New York agrees with the Florida case you cite. In NY testamentary capacity is the lowest standard of capacity by contrast a marriage is void in NY where the evidence shows that a party was incapable of understanding the nature, effect, and consequences of the marriage. While these closely parallell the testamentary capacity standard, the case law is pretty comprehensive saying that testatamentary capacity is the lowest level of capacity (leaving aside undue influcence, fraud and other issues). Keep up the great articles and lectures!