A conservatee’s ability to get married (or enter into a domestic partnership) is a popular topic that I have discussed with clients on several occasions. It was also an issue in Brittany Spears’ conservatorship.
A marriage (or domestic partnership) is a contractual relationship between the parties. To enter into the civil contract, the parties have to have the capacity to contract. The capacity required to enter a marriage contract is low, lower than both the capacity required to enter into a contract or to execute a Will. However, a marriage contract is very personal, and the courts tend towards protecting the right of a conservatee to enter into a marriage contract.
Even if a person is conserved in a general conservatorship, they are presumed to have the capacity to marry or enter into a domestic partnership. The authority to consent to marriage or enter into a domestic partnership is one of the seven powers that the court can grant to a limited conservator. It is my experience that this power is one of the more difficult powers to obtain in a limited conservatorship.
A court can order that a conservatee lacks the capacity to enter into a marriage or domestic partnership. This requires a showing that the conservatee is deficient in one or more of the person’s mental functions and that deficit is correlated to the decision to marry. The petition requesting that a conservatee lacks capacity to marry can be brought by the conservator, conservatee, a relative of the conservatee, or a friend of the conservatee. Counsel for the conservatee will be appointed by the court, if not already appointed, to represent the conservatee in the proceeding. It is recommended to obtain the medical opinion of a neuropsychologist to prove either that the conservatee has the capacity or does not have the capacity to marry.
Recently I met with clients who were concerned that their parent, who was showing signs of losing capacity, may be unduly influenced to marry a “friend” at the parent’s care facility. The issue with this situation is that the new spouse would obtain certain rights to the conservatee’s assets under intestate succession and omitted spouse laws. Intestate succession provides that a spouse receives 100% of community property assets and one-half to one-third of the separate property assets. An omitted spouse can make a claim against the estate if the estate planning documents were done prior to marriage and were not updated to reflect the marriage.
There are some protections in place if the conservatee includes the new spouse in their estate plan (a conserved person retains the right to execute a Will) and that spouse was the conservatee’s care custodian. This type of gift to a care custodian/spouse is presumed to be made by fraud or undue influence. It can be rebutted by clear and convincing evidence. The use of a confidential marriage with an elder is a tool used by predators as a way for the family to not know about the marriage and attempt to nullify it during the conservatee’s lifetime. However, a surviving spouse is precluded from receiving their omitted share if the spouse was the decedent-dependent adult’s care custodian and the marriage commended while care custodian provided services, or within 90 days after the services were last provided and decedent died less than six months after the marriage commenced.
If there is a concern regarding a person with diminished capacity being unduly influenced to marry or enter into a domestic partnership, it is important to determine what estate planning documents are in place and details regarding the person’s capacity. These will be necessary if a petition is brought to restrict the person’s right to marry or enter into a domestic partnership.