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Washington Divorce Set Aside Based On Fraud By Decedent

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Two weeks ago, Elder Law Issues reported on the case of Jessie Lee Anderson and Orange Pierson, a married couple who had separated forty years ago and both remarried (see Volume 6, Issue 20). Upon Ms. Anderson’s death, Mr. Pierson attempted to claim his rights as surviving spouse, but the California courts barred him from acting as if the marriage remained valid.

In a similar case, the Washington state courts have come to a different conclusion. Victor Himes and Frances Himes had been married in 1960, and lived together as recently as 1975. Mr. Himes was transferred by his employer (the U.S. Navy) to Oak Harbor, Washington in that year, and Mrs. Himes stayed at their home in Pennsylvania. Other than one three-month stay in Washington, she remained in Pennsylvania for the rest of their marriage.

In 1987, Mr. Himes filed a “do-it-yourself” divorce kit in Washington. He alleged that he did not know the whereabouts of his wife. The divorce was granted later that same year.

Within a few months, Mr. Himes had met Janana MacIntyre. They were married in 1993, and Mr. Himes died in 1994. After his death, Janana Himes (the second wife) began to receive survivor’s benefits from Mr. Himes’ Navy pension.

Frances Himes (the first wife) first learned of the 1987 divorce when, after her husband’s death, the Navy notified her that her dependent’s allowance and medical insurance coverage would be terminated. When she inquired further, she learned that a divorce had been granted, that her husband had remarried, and that he had died leaving his new wife as the beneficiary of his pension.

Frances Himes filed a motion to set aside the 1987 divorce on the basis that it had been fraudulently obtained. She alleged that Mr. Himes had known perfectly well where she lived, and that she had not moved from the family home for 21 years. She explained that she had not moved to set aside the divorce earlier for the simple reason that she had been unaware of its existence. If successful, she would regain her insurance coverage and begin receiving the survivor’s benefits being paid to Janana Himes.

Not surprisingly, Janana Himes objected to setting aside the divorce decree. She pointed out that the general rule of law requires that such a motion be filed within a short time of the final order, and that Frances Himes had not taken any such action for seven years. She also pointed out that Frances Himes had not lived with Mr. Himes for over twenty years, and had made no effort to find him or maintain any sort of marital relationship.

The Washington Supreme Court agreed with Frances Himes. Reversing a 90-year-old rule established by their own predecessors, the justices decided that a divorce decree could be set aside despite the fact that one party to the marriage had since died. Frances Himes’ marriage to Victor Himes was reestablished, and her survivor’s benefits restored. Marriage of Himes, October 29, 1998.

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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.

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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.