Can I Have an Annulment if my Spouse is Deceased?
Most people think about divorce as the ending of a marriage, but under certain circumstances, an annulment is more appropriate. Legally, an annulment nullifies a marriage so that it’s as if it never occurred.
If your spouse has died, and you are dealing with inheritance issues, spousal debts, or other issues related to you or your spouse’s estate you might be wondering if an annulment, rather than a divorce, could be an option.
The short answer is that when your spouse dies, the marriage is legally ended by their death, so an annulment is not usually an option since that process applies while both parties are alive. However, if an annulment is necessary to protect the rights and the best interests of heirs, family members can sometimes pursue an annulment if certain conditions are true and provable.
What circumstances precipitate an annulment?
Legal Reasons for Annulments
There are several legal reasons for which a judge would grant an annulment of a marriage. In California, for example, a family court judge would grant an annulment in cases of:
- Bigamy – one of the spouses is married to someone else
- Incest – you are close relatives
- Underage marriage – one spouse was under 18 at the time of marriage and did not obtain parental permission
- Fraud – one spouse was tricked into the marriage
- Unsound mind – a spouse lacked the mental capacity to agree to the marriage (including due to inebriation)
- Forced marriage – one spouse was forced into the marriage
- Lack of consummation – one spouse is physically unable to consummate the marriage
Declaration of Invalidity
In lieu of an annulment, you might be able to seek a declaration of invalidity through the family court system, which is similar to an annulment, to try to challenge or clarify the legal status of the marriage. You would need to present significant evidence that the marriage was void from the beginning and therefore never valid legally. Void marriages involve issues similar to those required for annulment, including bigamy, fraud, lack of consent, mental incapacity, incest, and fraud. Similar to an annulment, the process to declare a marriage invalid usually occurs while both spouses are alive, but some jurisdictions might consider it after the death of a spouse.
Key Things to Consider
Embarking on a legal challenge after the death of a spouse can take a huge personal toll on you mentally, emotionally, and financially. You should weigh these costs and recognize all the potential outcomes and their impacts on your family, especially if you have children.
Since family laws related to annulments, declarations of invalidity, inheritance, spousal support, and more vary widely by jurisdiction, it’s important to consult with a family law attorney who specializes in this specific area of a law in your state of residence.
Get Help from Family Law Attorneys
The family law attorneys at Lonich Patton Ehrlich Policastri (LPEP Law) have years of experience helping families work through complex issues related to annulments, pre-nuptial agreements, property division, and inheritance. Schedule a free, no-obligation consultation to speak with our team about your case. Let LPEP help you protect your rights and your family.
Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Gretchen Boger
Gretchen Z. Boger began her law career as a Deputy District Attorney in San Joaquin County from 2007 – 2010. During her tenure with the D.A.’s office, she prosecuted 17 jury trials. Ms. Boger has been practicing family law exclusively since January 2010. Ms. Boger joined Lonich Patton Ehrlich Policastri in 2013. She received her Juris Doctorate from the University of the Pacific, McGeorge School of Law. During her time at McGeorge, she received a concentration in trial advocacy.
