The Estate Planning Pitfalls of an Invalid Marriage
A recent story in the news featuring a fraudulent wedding officiant, raises some interesting estate planning issues. Mr. Cogan, who held himself out as an authorized wedding officiant, was charged with performing unauthorized marriages. Cogan had been licensed to perform marriages in the past, but it is reported that his license was revoked before he performed at least 48 marriages between August 2013 and July 2016.
Fortunately, pursuant to section 31 of the Marriage Act, if the couple married in good faith the marriage may be deemed valid despite the revoked licence. Indicia of good faith include: the intention to have a legally binding wedding, no disqualifications due to capacity and impairment, and proof that the couple lived together after the wedding ceremony.
Notwithstanding this statutory remedy, larger consequences for estate planning arise if the couple do not satisfy the prerequisites for the remedy provided in the Marriage Act.
Firstly, an invalid marriage may present an issue for individuals who created a will after the fact, leaving bequests to their “spouses” in their wills. Due to the fact the individuals are not “spouses” as defined pursuant to the intestacy provisions of the Succession Law Reform Act (excluding Part V) or Divorce Act, it would be interesting to see how the court would treat the inheritance should the spouse who made the will die.
Pursuant to Part V of the Succession Law Reform Act, if the couple has been cohabiting continuously for a period of not less than three years, or are in a relationship of some permanence, or if they are the natural or adoptive parents of a child, they may be considered a dependant spouse (within the meaning of Part V). This may entitle the individual a fair share of the estate in this case, but being recognized as an unmarried spouse is not always certain. In any case, it would be necessary to litigate the issue, adding an unnecessary expense to the estate.
Secondly, an invalid marriage would create issues for individuals who die intestate. Pursuant to the intestacy provisions of the Succession Law Reform Act, the spouse is first entitled to the preferential share ($200,000) of an estate. If an individual dies and their marriage was not valid, the spouse that would normally be entitled may be disinherited. The result of this is that the preferential share may go to somebody who was not meant to inherit such a large portion of the estate.
Thirdly, a will is automatically revoked upon marriage. Because he did not have the authority to perform marriages, if a person was “married” by Cogan but had a pre-existing will, that will might not be found to have actually been revoked. This uncertainty creates the potential for litigation.
Thanks for reading,