Close this search box.

Marriage Annulled by Court After Spouse’s Death

Print Article
Marriage annulled by court

Imagine a terminally-ill person marrying a long-time companion in the final weeks of life. If he or she was incapacitated at the time, can the marriage be annulled after the new spouse’s death? The Nebraska Supreme Court thinks so.

Molly Stacey’s last years

Greg Meyer, then 54, moved in with Molly Stacey in 2009. The couple lived together for the next eight years. Greg had not held a regular job for almost seven years before moving in, and never took a job after his arrival. He did, though, help Molly take care of her two children (who were then minors), and took care of the household.

In 2015 Molly learned that she had mouth cancer (that diagnosis, by the way, is why we use a blue-lipstick photo at the top of this newsletter — it’s a symbol for mouth cancer action month each November). She began treatment, but the cancer spread and her condition worsened. By late 2017, her family and friends knew that she was declining. She died on October 23, 2017, at the age of 60.

Molly had never signed a will, though she had beneficiary designations on a number of her assets. All of them named some combination of her two children. But in the last two weeks of her life, she took a number of steps that affected her estate.

On October 14, just nine days before her death, Molly married Greg in a ceremony in her home. Molly allegedly told the witnesses to keep the wedding secret from her children. In the days after the wedding, she also changed beneficiary designations on many of her assets. The new designations left several assets (including two houses) to Greg outright, divided a number of accounts between Greg and her two children, and added Greg’s son as a one-third beneficiary (with her children) on one other account.

Can a marriage be annulled after death of a spouse?

Molly’s two children, believing that Greg took advantage of her in her final weeks, filed a complaint to annul the marriage. They also sought to invalidate the various transactions undertaken during those last two weeks.

Greg moved to dismiss the complaint. He argued that the children could not maintain such an action. Only Molly’s estate would be able to seek an annulment, in his legal view. So the children initiated a probate proceeding and had a “special administrator” appointed. Then they modified their complaint to include the estate.

At trial, the children introduced evidence that Molly had long insisted that she did not intend to remarry. Witnesses testified that she did not want Greg’s name on her accounts, and wanted everything to go to her children. The children showed that her condition declined rapidly in those last few weeks, and that Greg had increasingly isolated her from contact with them or her long-time friends. They insisted that Greg had unduly influenced her. In fact, they claimed, she lacked capacity to change her beneficiary designations or even get married.

The court largely agreed with the children. The judge ordered the marriage annulled and set aside most of the transactions. One transaction, though, was not undone — Molly had put Greg’s son’s name on a boat she purchased two years before her death. As to that transaction, the judge ruled that there was insufficient evidence to show that she did not intend to make a gift.

The Nebraska Supreme Court weighs in

After Greg appealed the rulings against him, the children cross-appealed. The case ended up last week in the Nebraska Supreme Court.

Greg argued that simply naming Molly’s estate as a party was not enough. He pointed out that the children still filed all of the pleadings and prosecuted the case. The estate didn’t actively participate. Family members who believe that a marriage was invalid can’t pursue a post-death annulment on their own, he insisted.

He also challenged the trial judge’s findings that the various transactions were the subject of undue influence. Her children, though, pointed out that her medical records indicated that she was in and out of delirium, and that her interactions with others were minimal during that time. They also insisted that the only reason Molly had put Greg’s son’s name on the boat she purchased (for $119,000) long before her death was for tax purposes — he would be able to claim it as a vacation home because he held a specialized license to operate the boat.

The state Supreme Court agreed with Molly’s children on every point. They upheld the trial court’s marriage annulment, and also the invalidation of her beneficiary changes. But they went further: the state high court set aside the transfer of the boat to Greg’s son, as well. Malousek v. Meyer, July 30, 2021.

Significance of the court’s holding on annulment of the marriage

The trial court set aside virtually all of the transactions (and the Supreme Court set aside the last one). So what difference did it make whether the marriage was annulled? Because of the rules governing intestacy, Greg might have had at least a partial claim against Molly’s estate as a surviving spouse. [We don’t pretend to know much of anything about Nebraska law or the precise status of Molly’s estate, but can imagine that there would be additional issues.]

If Molly had signed a will while she was changing those beneficiary designations (and getting married), would the challenge have been more difficult? Her children would presumably have argued that the will, too, was the product of undue influence. It is hard — but not impossible — to challenge a will (or a beneficiary designation, for that matter) on the grounds of undue influence.

What about Arizona?

Would an Arizona court reach the same conclusion? It seems likely, though there is not a precise precedent in Arizona law — and what law there is doesn’t resolve the question. In a similar 2014 case, the Arizona Court of Appeals annulled a marriage after the death of an incapacitated spouse (and we reported on it at the time), but that appellate case was unreported — meaning it can’t be relied on as precedent.

Just to keep the confusion level high, an earlier Arizona appellate case (this one a reported decision — Estate of Rodriguez) includes language that suggests that neither a divorce nor an annulment can proceed after the death of a spouse. We pointed out that 2007 Arizona case in our 2013 article about a Wisconsin case that allowed an annulment to proceed after death. Ironically, the Arizona case with the opposite holding was decided just a year later.

In that later, 2014, Arizona case, the court noted that a divorce proceeding ends with the death of either spouse. This makes sense — a marriage ends with the death of a spouse, and so there is nothing to dissolve. But annulment is different, since it requires a showing that the marriage was never valid in the first place. On balance, we think the second Arizona case reaches the better conclusion. Plus, the Wisconsin and Nebraska courts agree.

Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.