Dirty Trick #41 to Steal Inheritance: Marry an Incompetent Widow

wi_supreme_court.jpgA recent Wisconsin Supreme Court case, McLeod v. Mudlaff, is among the most recent in court cases with “estates gone wrong” issues. While the Supreme Court’s decision focused upon the validity of the decedent’s marriage, the case arose initially as a probate dispute. The breakdown of the deceased woman’s estate offers some helpful instruction about the potential benefits of living trusts in estate plans.

Ms. Laubenheimer created a will in 1999 leaving most of her estate to her three stepchildren. In early October 2008, Laubenheimer suffered a series of debilitating strokes and was admitted to a nursing facility. On October 11, two doctors signed a “Statement of Incapacitation”, attesting to her condition. Nevertheless, Joseph McLeod, who had been living with the woman, checked her out of her nursing home twice, on Oct. 27 and Nov. 3, to obtain a marriage license and hold a marriage ceremony. The woman died three months later.

A probate dispute ensued when McLeod argued that Laubenheimer’s 1999 will was invalid and that, because he was her husband and the woman never adopted her stepchildren, he was the sole heir of the woman’s $450,000 estate. The stepchildren contended that the woman lacked the mental ability to provided legal consent after her incapacitating strokes, making her marriage to McLeod invalid.

The issue before the Supreme Court focused solely on whether a trial court can invalidate a marriage after one spouse has died; however, Laubenheimer’s case also offers a valuable lesson regarding estate planning. In cases where, as the deceased woman’s stepchildren asserted here, a party seeks to manipulate the system to improperly gain control of another’s assets, a living trust may offer a degree of protection.

How a revocable trust can (and can’t) help

Many revocable living trusts name the trust’s trustor, or creator, as the original trustee. That person has the authority to manage all assets owned by the trust until an event occurs that triggers a transition to the successor trustee, whom the trust creator named at the time of the trust’s creation. Most trusts provide several events that trigger a successor trustee’s assumption of control, including the original trustee’s death or incapacitation. Often, trust documents state that the medical statements of two doctors provide sufficient proof to establish incapacitation. In Laubenheimer’s case, if she had created and funded a living trust with her assets, the two doctors’ October 11 “Statement of Incapacitation” likely would have triggered a transition of trusteeship of her trust from herself to her successor trustee, a person she would have named prior to her loss of mental capacity.


One should clearly understand, however, that state law prohibits disinheriting spouses, and no amount of trust planning would allow one to leave her spouse absolutely nothing from her estate. Additionally, a person with sufficient access and motivation can engage in misconduct, even in cases involving living trusts. Nevertheless, the stepchildren’s legal path to success would be much greater, and clearer, if they had been contesting the legal validity of a trust amendment than if they were contesting the legal validity of their late stepmother’s recent marriage.

For questions, advice or assistance with estate planning issues, including probate, inheritance and living trusts, contact Madison estate planning attorney Daniel J. Krause of Krause Law Offices LLC. He has the knowledge and experience to assist you with your estate planning needs, whether they’re straightforward or highly complicated. Consult Attorney Daniel J. Krause to discuss your issues today.

Contact us through our website or call our office at (608) 268-5751 to schedule your confidential, no obligation initial consultation.
More blogs:

Thoughtful Planning Helpful to Provide for Second Spouse, Wisconsin Probate & Estate Planning Blog, May 6, 2013
Planning In Advance For Incapacity, Wisconsin Probate & Estate Planning Blog, Nov. 29, 2012
Cohabiting In Lieu of Marriage May Affect Your Wisconsin Estate Plan, Wisconsin Probate & Estate Planning Blog, Oct. 25, 2012