Marriage, Divorce, & Annulment When One Party is Arguably Incapacitated, 0214 COBJ, Pg. 39

AuthorJulia Griffith McVey, Virginia A. Frazer-Abel

43 Colo.Law. 39

Marriage, Divorce, and Annulment When One Party is Arguably Incapacitated

Vol. 43, No. 2 [Page 39]

Colorado Bar Journal

February, 2014

Trust and Estate Law

Marriage, Divorce, and Annulment When One Party is Arguably Incapacitated

Julia Griffith McVey, Virginia A. Frazer-Abel

Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.

Coordinating Editors

David W. Kirch, of David W. Kirch, P.C., Aurora—(303) 671-7726,; Constance D. Smith, of Fairfield and Woods P.C.—(303) 894-4474,

About the Authors

Julia Griffith McVey is a solo practitioner in Lakewood whose practice focuses on estate planning and probate and trust Virginia A. Frazer-Abel is a partner with the Lakewood firm of Pelegrin Radeff & Frazer-Abel, PC whose practice focuses on elder law, probate, estate planning, and public benefits eligibility— Thanks to paralegal Kari Rold for her research assistance.

Whether parties are married has multiple ramifications, including an effect on one's estate plan and eligibility for public benefits. This article discusses the capacity required to enter such a relationship and identifies possible solutions for undoing a relationship entered into by an incapacitated individual.

As the population ages, questions about capacity will become more common in the coming years. With regard to estate planning, questions about capacity will extend beyond evaluating one's capacity to make a will. Indeed, questions about an individual's capacity to marry impacts how one's estate ultimately is distributed.

Consider, for example, a situation where an arguably incapacitated individual marries for a second or third time and dies shortly thereafter. By virtue of leaving a surviving spouse, the deceased individual's estate plan may be drastically altered. Issues arise as to the rights of third parties, such as children from a previous marriage, to assert that the marriage was invalid, thus precluding the surviving spouse from inheriting.

This article reviews capacity as it relates to marriage when the individual entering such a relationship has questionable capacity. It also explores the effect of marriage on public benefits eligibility for these individuals. Finally, the article discusses possible remedies for undoing such potentially harmful marriages.

Capacity in General

Mental disability, impairment, or illness alone does not mean that a person is incapable of entering relationships, managing his or her affairs, or engaging in transactions.[1] The impairment becomes a question of degree and, as such, should be analyzed on a case-by-case basis.2 The laws in many other jurisdictions outside Colorado provide different tests for capacity depending on the transaction involved. For example, arguably, different capacity is required to marry than to make a will. There have been other articles in The Colorado Lawyer addressing capacity for protective proceedings and testamentary dispositions;3 this article limits its focus to capacity within the context of marriage, annulment, and divorce. To that end, keep in mind that this discussion also applies to parties in a civil union, same-sex marriage, domestic partnership, or common-law marriage.

Changing Demographics

Americans are aging. The population of U.S. adults aged 65 and older will increase to 55 million by 2020, which represents an increase of 35% from 2010.4 In 2015, Coloradans 65 and older will make up 12% of the state's population, and in 2030 that sector will represent 17% of Colorado's population.5 Colorado's growth rate in its 65 and older population was the fourth fastest in the United States during 2000-10.6 As baby boomers age, the population of those over age 65 is projected to increase by 150% between 2010 and 2030.7

With the aging population comes an increase in various forms of dementia. More than 5 million Americans are living with Alzheimer's disease and as many as 16 million are projected to have the disease in 2050.8 Nearly one in every three seniors who dies each year has Alzheimer's or another form of dementia.[9]In Colorado in 2010, more than 72, 000 individuals aged 65 and older were battling dementia.[10]By 2020, that number is projected to have an even larger increase so that more than 89, 000 people aged 65 and over will be suffering from dementia.11

Coupled with our aging population is our mobile population. These two factors contribute to a common situation where elderly parents no longer live near their adult children or other supportive family members. Consequently, these isolated individuals are more likely to fall prey to financial exploitation. Stories abound about rogue agents abusing a durable power of attorney to deplete an aged principal's savings. This type of abuse has become such a problem that Colorado recently enacted a statute mandating that abuse or exploitation of elders be reported.12 Colorado was the forty-eighth state to enact such protective legislation.13

Perhaps even more devastating and difficult to undo than a power of attorney is when the elder or incapacitated individual marries into financial abuse. Practitioners need to be alert to marital relationships entered into by questionably incapacitated clients. Not only can these marriages drastically impact an individual's estate plan, but such a relationship can negatively impact eligibility for various public benefits during one's lifetime, as well.

In light of the changing demographics in Colorado, predatory marriages may well be on the rise. Thus, it is important to consider just how easy it is for individuals to marry in Colorado.

Colorado Marriage Requirements

Colorado has adopted the Uniform Marriage Act (UMA), which sets forth the rules and requirements for ceremonial marriages in Colorado.14 The purpose of this legislation is to strengthen and preserve the integrity of marriage and safeguard meaningful family relationships.[15] In addition to recognizing common law marriages and civil unions, a marriage is statutorily valid in Colorado if it is licensed, solemnized, and registered. [16]Once a marriage application is completed and signed by both parties to a marriage and one of the parties has appeared before the county clerk and paid the fee, the county clerk issues a license to marry.17

The clerk will issue a marriage certificate form when furnished satisfactory proof that each party to the marriage will have attained the age of 18 at the time the license becomes effective (or the parties have parental consent or judicial approval as further dictated in the statute) and satisfactory proof that the marriage is not a prohibited one as set forth in CRS § 14-2-110.18 The license will be valid for no more than thirty-five days after its date of issue. If the license is not used within that time frame, it is void and must be returned to the county clerk and recorder for cancellation.19 After solemnizing the marriage (by a judge, by a court magistrate, or by the parties to the marriage), either party to the marriage must complete the marriage certificate form and send it to the county clerk and recorder within sixty-three days after the solemnization.20 Interestingly, a party need not be present at the solemnization of the marriage, as long as the absent party authorizes a third party to act as his or her proxy. After the individual solemnizing the marriage is satisfied that the absent party has consented to the marriage, the parties are married.21

Capacity to Marry

Colorado recognizes that marriage is a contract.22 A question exists as to what level of capacity is needed to enter such a contract. It is not clear from the statute what level of capacity is required and who makes that determination.

CRS § 14-10-111(l)(a) provides that a court may invalidate a marriage on a showing that a party lacked capacity to consent to marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances. However, the statute does not define capacity to consent to the marriage. This incapacity can be due to a number of permanent conditions such as insanity, incompetence, or senility, but it also may be due to a temporary condition caused by excess grief or stress, or by being under the influence of alcohol or drugs.[23]

Indeed, given that

a marriage is based on a contract, a trial court will likely look to general contract law for assistance in determining whether one of the parties lacked mental capacity to marry, with the threshold question being whether the party in question was capable of understanding the nature of the marital relationship.24

However, in Young v. Colorado, 25 the Colorado Supreme Court determined that a party does not need to understand the nature, obligations, and responsibilities of a marriage contract or appreciate the solemnity of the marriage vows to be considered mentally competent to enter into a marriage contract. That is different from the law of most jurisdictions.

Other jurisdictions have attempted to give guidance as to what it means to have capacity to consent to a marriage. New York and Arkansas have defined mental capacity to marry to include the parties' ability to understand the nature, effect, and consequences of the marriage.26 Many argue for this standard to measure marital capacity.

If an individual is not able to consent to marriage, within the Colorado Uniform Guardianship and Protective Proceedings Act (CUGPPA), a guardian can consent to...

To continue reading

Request your trial