In the recent case of Smith v. Smith, our Florida Supreme Court addressed the question of what happens to a person found to be legally incapacitated, who had a guardian appointed for them, and had the right to contract removed.  Can that person marry?

Alan Smith was involved in automobile accident in which he suffered head trauma.  As a result, his daughter initiated a guardianship case alleging that he was no longer capable of handling his financial affairs.  The court issued an order removing both Mr. Smith’s right to contract and to manage his own property, and delegated those rights to a guardian.  In a special note, the trial court stated:  “If the right of the ward to contract has been delegated to the guardian, but the right to marry is retained, then the right to marry is subject to court approval.”

In the year prior to his accident, Alan had become engaged to Glenda Martinez and had executed estate planning documents naming her as his Health Care Surrogate and Preneed Guardian.  He also gave Glenda a Durable Power of Attorney.  After the accident, Glenda and Alan were married.  Court approval was not obtained prior to the marriage ceremony, but Glenda asked the guardian to seek court approval afterwards.  The guardian refused.

Court-appointed counsel requested that the marriage be annulled, arguing that it was void because court approval had not been obtained prior to the act of the marriage.  The trial court agreed and ruled that the marriage was void and incapable of being ratified.  Glenda appealed, arguing that neither any statutes, nor the specific Order removing Alan’s act to contract, explicitly required prior court approval, so the marriage should be ratified by obtaining approval after the marriage was solemnized.  The Florida Supreme Court agreed with Glenda and held that the ward’s failure to obtain court approval prior to exercising the right to marry does not render the marriage either void or voidable.    Instead, the court concluded that court approval is required before a ward whose right to contract has been removed may enter a valid marriage.  Any marriage entered into without court approval is invalid.  However, the statute does not prevent the ward or the intended spouse from seeking court approval after marrying in order to ratify the marriage.

The bottom line is that an incapacitated person who has lost the right either to contract or to marry, cannot marry without obtaining court approval.  However, court approval can be obtained either before or after the wedding ceremony.

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