Do the Legally Incapacitated Have the Right to Marry?

elderly coupleAn elderly couple from Virginia, Edith Hill, 96, and Eddie Harrison, 95, are newlyweds. According to Hill’s granddaughter, they are very happy and very in love.

The problem—Hill has two daughters serving as her co-guardians and one of them has challenged the marriage because Hill has been declared legally incapacitated for several years. Now a judge has appointed a Guardian Ad Litem, a lawyer who will investigate and act to protect Hill’s interest. Hill has approximately $475,000 in investments and real estate.

This case raises many legal questions, such as is the marriage even valid. In Illinois, the marriage is considered valid but if someone with standing, such as a family member, challenges it by filing a declaration of invalidity, as the daughter is, it is possible it will be declared invalid and annulled. Mental incapacity is one of the limited grounds under Illinois law that a marriage can be invalidated. A complete list of all of the grounds for annulling a marriage are in Section 5/301 of the Illinois Marriage and Dissolution of Marriage Act.

A less severe alternative to annulment in this case is entering into a postnuptial agreement. A post nuptial agreement will protect the financial interests of Edith Hill but allow her to stay married. A post nuptial agreement is just like a pre-nuptial agreement except it occurs after the marriage has been officiated. The agreement can provide that Hill will get to keep the majority of her assets in the event of a dissolution or marriage or death.

If her husband does not agree to enter into the agreement, however, moving to invalidate the marriage may be the best recourse.

If you have or know an elderly person who wants to marry, a prenuptial agreement may be highly advisable for that person. Even if the person has not been declared legally incapacitated, the marriage could be challenged on the basis that the elderly person was incompetent. A prenuptial agreement could avoid costly litigation down the road.


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