Patricia Mudlaff v. Joseph McLeod

2013 WI 76

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1176 and 2011AP1177
COMPLETE TITLE: In re the estate of Nancy Ellen Laubenheimer:

Joseph McLeod,
Petitioner-Respondent,
v.
Patricia Mudlaff n/k/a Patricia Guske, Barbara
Nigh and Millard Laubenheimer,
Objectors-Appellants.

------------------------------------------------
In re the estate of Nancy Ellen Laubenheimer:

Patricia Mudlaff n/k/a Patricia Guske, Barbara
Nigh and
Millard Laubenheimer,
Appellants,
v.
Joseph McLeod,
Respondent.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: July 16, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 12, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: Andrew T. Gonring

JUSTICES:
CONCURRED:
DISSENTED: ZIEGLER, J., dissent. (Opinion filed.) GABLEMAN,
J., dissent. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the objectors-appellants, there were briefs by Gregory
S. Mager and O’Neil, Cannon, Hollman, DeJong & Laing S.C.,
Milwaukee, and oral argument by Gregory S. Mager.
 For the petitioner-respondent, there was a brief by Alan L.
Spiegel, Paul Bugenhagen Jr., and Mclario, Helm & Bertling S.C.,
Menomonee Falls, with oral argument by Alan L. Spiegel.

2
 2013 WI 76
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1176 & 2011AP1177
(L.C. No. 2009PR25 & 2009PR26)

STATE OF WISCONSIN : IN SUPREME COURT

In re the estate of Nancy Ellen Laubenheimer:

Joseph McLeod,

Petitioner-Respondent, FILED
v.
JUL 16, 2013
Patricia Mudlaff n/k/a Patricia Guske,
Barbara Nigh and Millard Laubenheimer, Diane M. Fremgen
Clerk of Supreme Court

Objectors-Appellants.

APPEAL from an order of the Circuit Court for Washington

County, Andrew T. Gonring, Judge. Reversed and cause remanded.

¶1 DAVID T. PROSSER, J. These consolidated estate cases

are before the court on certification from the court of appeals,

pursuant to Wis. Stat. § (Rule) 809.61 (2009-10).1

¶2 The cases arise from competing petitions for the

appointment of a personal representative and the formal

1
All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated.
 No. 2011AP1176 & 2011AP1177

administration of the estate of Nancy Ellen Laubenheimer

(Laubenheimer). Joseph McLeod (McLeod) filed a petition for

formal administration of Laubenheimer's estate and his

appointment as personal representative. He also asserted his

right, as Laubenheimer's husband, to a share of her estate.

Patricia Mudlaff (Patricia), Laubenheimer's stepdaughter, also

filed a petition for formal administration and appointment as

personal representative. Patricia asserted that Laubenheimer's

marriage to McLeod was invalid because Laubenheimer lacked the

mental capacity to consent to the marriage to McLeod. Thus,

Patricia asked the circuit court to declare Laubenheimer's

marriage void, making McLeod ineligible to receive a share of

Laubenheimer's estate.

¶3 The principal issue in this case is whether a court

has the authority to declare a marriage void after the death of

one of the parties to the marriage.

¶4 The Washington County Circuit Court2 rejected

Patricia's argument, concluding that annulment was the only
method to void a marriage and that a Wisconsin statute prohibits

annulment after the death of one of the parties to the marriage.
¶5 We reverse. In Ellis v. Estate of Toutant (Estate of

Toutant), 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692, the

court of appeals held that there is a fundamental distinction

between annulment and a judicial declaration that a marriage is

void. The court of appeals further held that in an estate

2
Judge Andrew T. Gonring presiding.

2
 No. 2011AP1176 & 2011AP1177

action challenging a marriage, a court may use its declaratory

judgment powers to declare that a marriage prohibited by law was

void and incapable of validation by the parties to the marriage.

¶6 We conclude that the holdings and analysis in Estate

of Toutant are correct. Annulment is certainly an appropriate

remedy to void a marriage when the parties to the marriage are

still alive, but it is not the exclusive remedy to challenge the

validity of a marriage. The common law drew a distinction

between an annulment and a declaration that a marriage was void,

especially a declaration after the death of one of the parties.

Our statutes and case law have preserved that distinction.

¶7 Wisconsin Stat. ch. 765 sets out the criteria for a

valid marriage in this state. Failure to meet one of these

criteria will often result in a void marriage. An action under

the Uniform Declaratory Judgments Act (the UDJA) is the

established mechanism for testing the validity of a marriage in

an estate case because the UDJA explicitly provides standing for

interested parties in an estate action.

¶8 The change in the annulment statute in 2005 Wis. Act
443 did not alter the holdings in the Estate of Toutant case.

There is no evidence that the legislature sought to curtail a

court's power to address fraud, mistake, and other exigencies in

a disputed marriage in order to "declare rights, status, and

other legal relations." Wis. Stat. § 806.04(1). Limiting a

court's power to address these issues would effectively shut off

declaratory remedies for parties in an estate action.

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 No. 2011AP1176 & 2011AP1177

¶9 We remand the case to the circuit court for further

action consistent with this opinion.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

¶10 Nancy and Luke (Luke) Laubenheimer were married 30

years before Luke's death in 2001. Their marriage produced no

children, but Luke had three children from a previous marriage.

Two of those children, Patricia and Millard (Millard)

Laubenheimer, are parties in this case. Laubenheimer never

adopted Luke's children.

¶11 Laubenheimer executed a will in 1999 leaving the bulk

of her estate to Luke, but if Luke died before she did, the bulk

of Laubenheimer's estate was to be distributed to Luke's

children. Laubenheimer did not alter this will in the decade

after Luke's death.

¶12 Laubenheimer suffered a stroke in January 2007. From

that time until her death in February 2009, Laubenheimer also

suffered from hypertension, insulin-dependent diabetes, and

renal failure. At some point, McLeod came to live with
Laubenheimer. McLeod claims that he lived with her beginning in

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 No. 2011AP1176 & 2011AP1177

July 2003. His presence in her home clearly preceded March

2007.3

¶13 On October 1, 2008, Community Memorial Hospital in

Menomonee Falls admitted Laubenheimer with stroke-like symptoms,

including "right side weakness, difficulty speaking, and facial

droop." Two doctors at the hospital noted Laubenheimer's

diminished mental capacity. On October 11, Dr. Lisa M. Rich and

Dr. Colleen Poggenburg signed a "Statement of Incapacitation,"

concluding that Laubenheimer was "unable to receive and evaluate

information effectively or to communicate decisions" and that

she lacked the capacity to make health care decisions. The

Statement of Incapacitation activated Laubenheimer's health care

power of attorney, which designated Laubenheimer's cousin, Diane

Kulpa, to serve in that capacity. Laubenheimer's mental state

purportedly never improved and the health care power of attorney

remained in effect until she died.

¶14 On October 13, 2008, Laubenheimer was transferred from

Community Memorial Hospital to Virginia Highlands Health and
Rehabilitation Center (Virginia Highlands), a nursing home in

3
A March 2007 Washington County Sheriff's Department case
report indicates that a sheriff's deputy conducted a welfare
check of Laubenheimer's home based on a call from an Aurora
Health nurse assigned to take care of Laubenheimer. The case
report identified McLeod as "Clark McLeod." Although the case
report noted that Laubenheimer admitted to "Clark" getting
"rather upset" at times, and that the nurse expressed concern
about "Clark" not allowing Laubenheimer to get the care she
required, apparently neither the deputy nor the Washington
County Division of Social Services took any further action in
regard to this report.

5
 No. 2011AP1176 & 2011AP1177

Washington County. From the time of her admittance to Virginia

Highlands until her death on February 5, 2009, Laubenheimer was

treated by Dr. Dirk Steinert, the attending physician at the

nursing home.

¶15 McLeod removed Laubenheimer from Virginia Highlands on

October 27, 2008, to obtain a marriage license. He removed her

again on November 34 for a marriage ceremony before Washington

County Court Commissioner Jeffrey A. Jaeger. McLeod did not

inform Laubenheimer's family, friends, doctors, or social

workers about the wedding. A representative of a medical

insurance carrier for Laubenheimer was the first to communicate

the marriage of Laubenheimer and McLeod to a member of the

Virginia Highlands staff.

¶16 On January 13, 2009, Patricia filed petitions in

Washington County Circuit Court seeking temporary and permanent

guardianship of the person and the estate for Laubenheimer, as

4
Patricia's brief and the court of appeals certification
state that McLeod removed Laubenheimer from Virginia Highlands
on November 3 to obtain a marriage license and that they were
married on November 7. McLeod's brief and the circuit court
decision state that McLeod removed Laubenheimer on October 27
and again on November 3. McLeod referred to both sets of dates
in the circuit court, while Patricia consistently referred to
the November 3 and November 7 dates. The discrepancy in dates
does not affect our holding in any way.

6
 No. 2011AP1176 & 2011AP1177

well as protective placement.5 Patricia's guardianship petition

alleged that Laubenheimer "suffer[ed] from severe cognitive

disability due to several strokes." In addition, the

guardianship petition claimed that McLeod "continues to

interfer[e] with [Laubenheimer's] necessary health care in

contravention of the direction of [Laubenheimer's] health care

power of attorney." One example of this interference, according

to the petition, was McLeod discharging Laubenheimer from

Virginia Highlands against medical advice. Patricia alleged

that Laubenheimer needed a guardian to readmit her to the

nursing home.

¶17 Patricia's guardianship petition also contained an

examining physician's report from Dr. Steinert, opining that

Laubenheimer was incompetent and in need of a guardian.6

¶18 On January 27, 2009, the circuit court appointed

Laubenheimer's power of attorney for health care, Diane Kulpa,

as temporary guardian of Laubenheimer's person, and Barbara Nigh

(Nigh), Laubenheimer's sister, as temporary guardian of

5
On the same date, Patricia filed a Temporary Restraining
Order and Injunction against McLeod, alleging that Laubenheimer
was an elderly at-risk individual and that McLeod abused and
financially exploited her. According to Consolidated Court
Automated Programs (CCAP) records, the circuit court granted the
temporary restraining order immediately, but the court dismissed
the pending injunction against McLeod because of Laubenheimer's
death.
6
Dr. Steinert's report concluded that Laubenheimer had
"cognitive inability to comprehend long[-]term or even short[-
]term concerns (health, welfare related & therefore probably
financial)."

7
 No. 2011AP1176 & 2011AP1177

Laubenheimer's estate, concluding that there was a "reasonable

likelihood" Laubenheimer was incompetent.7

¶19 Laubenheimer died at Virginia Highlands on February 5,

2009, while the permanent guardianship proceedings were pending.

In a letter dated February 7, 2009, Dr. Steinert concluded that

at no time after Laubenheimer's admission to Virginia Highlands

(including the date of the November marriage ceremony) did she

have sufficient capacity to consent to marriage.

¶20 On June 9, 2009, McLeod filed a petition for formal

administration of Laubenheimer's estate, requesting that the

court appoint him as personal representative and asserting his

right to a share of Laubenheimer's estate. McLeod attached a

copy of Laubenheimer's October 13, 1999, will, but claimed that

the will was not "properly executed" or "valid," and that after

a "diligent inquiry," he was unable to find the original will or

any subsequent wills executed by Laubenheimer. McLeod asserted

that because the 1999 will was executed prior to his marriage to

Laubenheimer, he had a right to a share of his wife's estate
under Wis. Stat. § 853.12. Section 853.12(1) provides that "if

the testator married the surviving spouse . . . after the
testator executed his or her will, the surviving spouse . . . is

entitled to a share of the probate estate." The surviving
spouse's share is equal to what his or her share would be if the

7
Patricia's petition for temporary guardianship of the
estate requested the authority to "[f]ile an objection and/or
annulment of purported marriage between [Laubenheimer] and
Joseph C. McLeod." In its order granting the temporary
guardianship, the circuit court denied this additional power.

8
 No. 2011AP1176 & 2011AP1177

testator died intestate, minus devises made to the testator's

children and their issue. Wis. Stat. § 853.12(2). McLeod

argued that inasmuch as Laubenheimer did not have any biological

children and never adopted Luke's children, he was the sole heir

of Laubenheimer's estate.

¶21 The next day, June 10, 2009, Patricia8 also filed a

petition for formal administration of Laubenheimer's estate,

seeking to be named co-personal representative of the estate

with her brother Millard.9 Patricia asked the court to admit a

conformed copy10 of Laubenheimer's will into probate. Patricia

also argued that Laubenheimer's marriage to McLeod was invalid

on grounds that Laubenheimer lacked the mental capacity to enter

8
For the sake of simplicity, the objectors/appellants
Patricia, Millard, and Nigh will be referred to as "Patricia"
hereinafter.
9
Patricia also filed an objection to McLeod's petition for
formal administration and appointment as personal
representative.
10
A conformed copy is "[a]n exact copy of a document
bearing written explanations of things that were not or could
not be copied, such as a note on the document indicating that it
was signed by a person whose signature appears on the original."
Black's Law Dictionary 385 (9th ed. 2009). Patricia claims that
the conformed copy of Laubenheimer's will was obtained from the
attorney who drafted substantially identical wills for
Laubenheimer and Luke.

9
 No. 2011AP1176 & 2011AP1177

into a marriage contract, and therefore McLeod had no right to a

surviving spouse's share of Laubenheimer's estate.11

¶22 In a written decision dated December 23, 2009, the

circuit court recognized that the issue of whether it had the

authority to invalidate the Laubenheimer-McLeod marriage after

Laubenheimer's death would "control the course of this estate."

Examining the statutes, in particular Wis. Stat. § 767.313, the

circuit court concluded that "the only way a marriage may be

invalidated in the state of Wisconsin is through annulment.

However, pursuant to Wis. Stat. [§] 767.313(2), no marriage may

be annulled after the death of a party to the marriage." Thus,

the court rejected Patricia's argument that it had the power to

invalidate the marriage. The circuit court subsequently

affirmed its decision in an order dated February 21, 2011, while

granting McLeod's petition for formal administration and denying

Patricia's petition.12 However, the circuit court, cognizant of

Patricia's intention to appeal the order, appointed a neutral

party to serve as personal representative of the Laubenheimer
estate.

11
Nigh filed a petition to be found an interested person
and to join Patricia and Millard for formal administration of
the estate. Nigh was Laubenheimer's sister, which would make
her an intestate beneficiary if the court found Laubenheimer's
marriage to McLeod invalid and the conformed will was not
admitted into probate.
12
Patricia appealed the circuit court's December 23, 2009,
decision to the court of appeals. The court of appeals decided
that the December 23 decision of the circuit court was not an
appealable order because it was not a final order or judgment.

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 No. 2011AP1176 & 2011AP1177

¶23 Patricia appealed. The court of appeals certified the

matter to this court, and we accepted the certification on

October 17, 2012.

II. STANDARD OF REVIEW

¶24 In this case, we must determine whether the statutes

allow a court, in an estate case, to declare a marriage void

after the death of one of the parties. Statutory interpretation

presents a question of law that this court reviews de novo.

Wis. Dolls, LLC v. Town of Dell Prairie, 2012 WI 76, ¶19, 342

Wis. 2d 350, 815 N.W.2d 690; Zwiefelhofer v. Town of Cooks

Valley, 2012 WI 7, ¶20, 338 Wis. 2d 488, 809 N.W.2d 362.

III. ANALYSIS

¶25 This case presents a legal issue about the authority

of a Wisconsin court to pass on the validity of a marriage after

the death of one of the parties to the marriage. In addressing

this issue, our intent is to avoid any determination by this

court of the validity of the marriage between Laubenheimer and

McLeod.

¶26 The parties in this case offer very different

interpretations of the statutes and cases on the legal issue of

whether a court may evaluate the validity of a marriage after

the death of one of the parties.

¶27 McLeod focuses on Wis. Stat. § 767.313. He contends

that annulment is the exclusive means to invalidate a void or

voidable marriage, and that § 767.313(2) absolutely prohibits a

marriage from being annulled after the death of a party to the

marriage.
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 No. 2011AP1176 & 2011AP1177

¶28 Patricia concedes that under Wis. Stat. ch. 767, a

court cannot annul the Laubenheimer-McLeod marriage. However,

Patricia relies on several provisions in Wis. Stat. ch. 765 that

prohibit a marriage in various situations and state that a

marriage is void if one of those provisions is violated. One of

the provisions in Wis. Stat. ch. 765 prohibits marriage where a

party has such want of understanding as renders him or her

incapable of assenting to marriage. Wis. Stat. § 765.03(1).

Patricia claims that a court has authority under Wis. Stat.

§ 806.04(4) to declare such a marriage void in an estate case

even after the death of one of the parties.

¶29 When interpreting a statute, "we begin with the

language of the statute, because it is the language that

expresses the legislature's intent." Hocking v. City of

Dodgeville, 2010 WI 59, ¶18, 326 Wis. 2d 155, 785 N.W.2d 398

(citing State ex rel. Kalal v. Circuit Court for Dane Cnty.,

2004 WI 58, ¶¶44–45, 271 Wis. 2d 633, 681 N.W.2d 110).

"Statutory language is given its common, ordinary, and accepted

meaning, except that technical or specially-defined words or

phrases are given their technical or special definitional

meaning." Kalal, 271 Wis. 2d 633, ¶45. The scope, context, and

purpose of a statute, derived from statutory text and structure,

are perfectly relevant to a plain-meaning interpretation. Id.,

¶48. Statutory history also is part of a plain-meaning

analysis. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22,

309 Wis. 2d 541, 749 N.W.2d 581. Legislative history may be

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 No. 2011AP1176 & 2011AP1177

relevant to confirm a statute's plain meaning. Kalal, 271

Wis. 2d 633, ¶51.

A. Current Marriage Law in Wisconsin

¶30 We begin our analysis with the current statutes.

Marriage requirements are determined by statute. See Watts v.

Watts, 137 Wis. 2d 506, 519 n.11, 405 N.W.2d 303 (1987) (noting

that Wisconsin abolished common law marriage in 1917); see also

§ 3, ch. 218, Laws of 1917.

¶31 Wisconsin Stat. ch. 765 is entitled "Marriage" and it

lays out the requirements for entering into marriage in

Wisconsin. Wisconsin Stat. § 765.001(2) explains the intent

behind Wis. Stat. chs. 765 through 768, "The Family Code":

It is the intent of chs. 765 to 768 to promote
the stability and best interests of marriage and the
family. . . . Marriage is the institution that is the
foundation of the family and of society. Its
stability is basic to morality and civilization, and
of vital interest to society and the state. The
consequences of the marriage contract are more
significant to society than those of other contracts,
and the public interest must be taken into account
always. . . . The impairment or dissolution of the
marriage relation generally results in injury to the
public wholly apart from the effect upon the parties
immediately concerned.
Wis. Stat. § 765.001(2). Section 765.001(3) states that The

Family Code "shall be liberally construed to effect the
objectives" in § 765.001(2).

¶32 Marriage in Wisconsin, "so far as its validity at law
is concerned, is a civil contract, to which the consent of the

parties capable in law of contracting is essential." Wis. Stat.

§ 765.01 (emphasis added). See also Campbell v. Blumberg, 260

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 No. 2011AP1176 & 2011AP1177

Wis. 625, 628, 51 N.W.2d 709 (1952) ("[M]arriage is a civil

contract. It is different from ordinary contracts in that it

cannot be modified or abrogated by the parties themselves. Once

entered into, a valid marriage contract continues until the

contract is changed by law or by the death of one of the

parties.").

¶33 Wisconsin Stat. ch. 765 prohibits marriage between

parties in certain situations. Only competent persons who have

attained the age of 18 may marry in this state, although a

person between 16 and 18 years of age may marry with the

requisite parental permission. Wis. Stat. § 765.02. Wisconsin

Stat. § 765.03 lists four situations in which marriage shall not

be contracted: (1) "while either of the parties has a husband or

wife living"; (2) when the parties "are nearer of kin than 2nd

cousins" (with certain exceptions); (3) when "either party has

such want of understanding as renders him or her incapable of

assenting to marriage"; and (4) when any person who is or has

been a party to a divorce in this state or elsewhere marries
again within six months after the judgment of divorce is

granted. In addition, Wis. Stat. § 765.04 forbids a marriage
when a person who is prohibited from marrying in this state goes

into another state or country and contracts a marriage
prohibited under the laws of this state. Finally, Wis. Stat.

§ 765.16 states that a marriage "may be validly solemnized and
contracted in this state only after a marriage license has been

issued therefor," and only after mutual declarations by the

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 No. 2011AP1176 & 2011AP1177

parties in front of an authorized officiating person and

witnesses.

¶34 Wisconsin Stat. § 765.21 declares that all marriages

contracted in violation of the above sections "shall be void,"

excepting for immaterial irregularities. "'[V]oid' means null

and void and not voidable." Wis. Stat. § 765.002(6). However,

§ 765.21 allows the parties to a void marriage to validate it by

complying with any of the requirements set forth in the above

cited provisions of Wis. Stat. ch. 765 "if the marriage is

declared void." (Emphasis added.) In other words, the

impediments to a valid marriage must be removed before the void

marriage may be validated.13

¶35 Wisconsin Stat. ch. 767 is entitled "Actions Affecting

the Family." Actions in this chapter include, inter alia,

annulment. Wis. Stat. § 767.001(1)(b). Wisconsin Stat.

§ 767.313(1) lists the grounds for an annulment suit brought by

a party, a parent or guardian, or a legal representative:

(a) A party lacked capacity to consent to the
marriage at the time the marriage was solemnized,
either because of age, because of mental incapacity or
infirmity or because of the influence of alcohol,
drugs, or other incapacitating substances, or a party
was induced to enter into a marriage by force or

13
We note that Wis. Stat. § 765.21 declares certain alleged
marriages to be "void," yet the section states how those same
void marriage can be validated by the parties. See also John P.
Foley, Comment, The Voidable Void Marriage in Wisconsin, 49
Marq. L. Rev. 751 (1966). However, this statute is of no moment
in a collateral proceeding such as an estate action; the death
of an incapacitated party means that the marriage is incapable
of validation by the parties.

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 No. 2011AP1176 & 2011AP1177

duress, or by fraud involving the essentials of
marriage. . . .

(b) A party lacks the physical capacity to
consummate the marriage by sexual intercourse, and at
the time the marriage was solemnized the other party
did not know of the incapacity. . . .

(c) A party was 16 or 17 years of age and did
not have the consent of his or her parent or guardian
or judicial approval, or a party was under 16 years of
age. . . .

(d) The marriage is prohibited by the laws of
this state. . . .
Wis. Stat. § 767.313(1). The same section contains a provision

that "[a] judicial proceeding is required to annul a marriage.

A marriage may not be annulled after the death of a party to the

marriage." Wis. Stat. § 767.313(2).

¶36 This annulment provision is central to the matter

before us. McLeod asserts that a marriage cannot be voided

except by annulment, and annulment is not available when one of

the parties is deceased. Patricia, on the other hand, relies on

provisions throughout Wis. Stat. ch. 765 that seem to say that

unless certain conditions are met, a marriage is void from its

inception. Patricia asserts that a court has the power to

declare a marriage void outside the annulment process in Wis.

Stat. ch. 767.

B. Estate of Toutant: Courts Have the Power to Declare

a Marriage Void After the Death of One of the Parties

to the Marriage

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 No. 2011AP1176 & 2011AP1177

¶37 When the parties to a marriage are alive, the

appropriate remedy for voiding a marriage is annulment.14

However, at common law, when one of the parties died, such that

any impediment to a valid marriage was no longer capable of

being corrected, a declaration that a marriage was void was the

proper remedy. Our case law has retained this common law

principle, and the most recent example is Estate of Toutant.

¶38 In Estate of Toutant, a Wisconsin resident, Toutant,

married a Scottish national named Ellis in Texas only 30 days

14
Although the appropriate method for voiding a marriage
when the parties are alive is annulment under Wis. Stat.
§ 767.313, an annulment action is not the only method for
testing the validity of a marriage.

For example, Wis. Stat. § 767.18, entitled "Actions to
affirm marriage," reads:

If the validity of a marriage is denied or
doubted by either of the parties the other party may
commence an action to affirm the marriage. The
judgment in an action to affirm marriage shall declare
the marriage valid or annul the marriage, and is
conclusive upon all persons concerned.

If the judgment "is conclusive upon all persons concerned,"
persons concerned must have the opportunity to present evidence
that the marriage was and is void, as where one of the parties
is still married to another person. See Kitzman v. Kitzman, 167
Wis. 308, 166 N.W. 789 (1918).

In addition, a declaratory judgment action under Wis. Stat.
§ 806.04(1) or (4) may be filed by an interested person who is
able to satisfy the standing requirements under the declaratory
judgment statute. This is signaled by a close reading of Wis.
Stat. § 765.21: "The parties to any such marriage may validate
the marriage by complying with the requirements of ss. 765.02 to
765.24 as follows: (1) At any time, if the marriage is declared
void under s. 765.02 or 765.16." (Emphasis added.)

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 No. 2011AP1176 & 2011AP1177

after Ellis's Scottish divorce. Estate of Toutant, 247

Wis. 2d 400, ¶¶3, 6. Toutant died shortly after returning to

Wisconsin with Ellis. Id., ¶7. Toutant died testate, but Ellis

filed a Surviving Spouse's Selection of Personal Property,

selecting the bulk of Toutant's personal property. Id., ¶8.

The personal representative of the estate filed a petition for a

declaratory judgment asking the circuit court to declare the

marriage of Toutant and Ellis null and void. Id., ¶9. The

circuit court ruled that the marriage was void because it

"violated Wisconsin's six-month waiting period between a divorce

and a subsequent marriage." Id., ¶11.

¶39 Ellis argued that the circuit court did not have the

authority to annul the marriage because a marriage cannot be

annulled after the death of one of the parties. Id., ¶15. The

court of appeals agreed with this assertion, but noted that "the

estate was not asking the marriage to be annulled." Id.

(internal quotation marks and brackets omitted). Instead, the

estate was asking the circuit court to declare the marriage null

and void. Id.

¶40 The court of appeals looked to then-Wis. Stat.

§ 767.03 (1999–2000), which stated that judicial proceedings

were needed to annul or hold void a marriage, and "[n]o marriage

may be annulled after the death of either party to the

marriage." The court of appeals concluded that the second part

of this provision "pointedly prohibits only annulment after the

death of either spouse. Thus, a marriage can be declared null

18
 No. 2011AP1176 & 2011AP1177

and void after the death of a spouse." Id., ¶16 (emphasis

added).

¶41 Ellis argued that his marriage to Toutant was, at

most, a voidable marriage and thus was valid until subsequently

annulled. Id., ¶25. However, the court of appeals held that

such distinction was beside the point because it ignored the

plain language of the applicable statute: Wis. Stat. § 765.03(2)

"specifically states that a 'marriage . . . solemnized before

the expiration of 6 months from the date of the granting of

judgment of divorce shall be void,'" and void means "null and
void and not voidable." Id., ¶¶25–26 (quoting Wis. Stat.

§§ 765.03(2) and 765.002(6) (1999–2000)).

¶42 Therefore, the court of appeals affirmed the circuit

court's use of its declaratory judgment powers to void the

Toutant-Ellis marriage. See id., ¶12 n.1 (citing Wis. Stat.

§ 806.04(1) and (4)(c), the UDJA).

¶43 There is a clear statutory and case law basis for the

Estate of Toutant court's conclusion. The common law drew a

distinction between annulment and declaring a marriage void

after death, and that distinction has been preserved.

¶44 Wis. Stat. ch. 78 of the Revised Statutes of 1849 was

titled "Of Marriage," similar to what Wis. Stat. ch. 765 is

titled today. It contained several sections relating to the

incapability of certain individuals to contract marriage——

including mental incapability——and additional requirements for

marriage. Wis. Stat. ch. 79 of the 1849 Revised Statutes,

titled "Of Divorce," also contained a section that declared that
19
 No. 2011AP1176 & 2011AP1177

certain marriages prohibited by law "shall be void," including

those in which either of the parties was incapable of assent

because of want of understanding. Wis. Stat. ch. 79, § 2

(1849). Furthermore, Section 3 read that: "When a marriage is

supposed to be void, or the validity thereof is

disputed, . . . either party may file a petition . . . for

annulling the [marriage] . . . and upon due proof of the nullity

of the marriage, it shall be declared void." Wis. Stat. ch. 79,

§ 3 (1849). However, Section 5 stated that a marriage of an

"insane person" shall not be declared void after "his

restoration to reason" if it appeared that the parties

cohabitated together for a time and the incapacitated person was

"restored to a sound mind." Wis. Stat. ch. 79, § 5 (1849).

¶45 In sum, our first statutory compilation prohibited

certain marriages and deemed these prohibited marriages "void."

Furthermore, the first statutory compilation set out a petition

for annulment as the mechanism to declare a marriage void during

the life of the parties.15
¶46 The case of Williams v. Williams, 63 Wis. 58, 23

N.W. 110 (1885), was an ejectment action that interpreted these

marriage provisions. The issue in Williams was whether the

plaintiff was still married to her first husband (who also may

15
Wis. Stat. ch. 78 "Of Marriage" and Wis. Stat. ch. 79 "Of
Divorce" were subsequently relocated to Wis. Stat. ch. 109 and
Wis. Stat. ch. 111 of the 1858 Revised Statutes, respectively.
Later, these same provisions were moved again in the Revised
Statutes of 1878; "Of Marriage" was assigned Wis. Stat. ch. 107
and "Of Divorce" was assigned Wis. Stat. ch. 109.

20
 No. 2011AP1176 & 2011AP1177

have been married to another woman); if so, "then she was

incapable of entering into the marriage contract with" her

second husband. Williams, 63 Wis. at 58–59 (statement of the

case), 61 (citing Wis. Stat. ch. 107, § 2330; ch. 109, § 2349

(1878)) (stating that no marriage shall be contracted while

either of the parties has a husband or wife living, and if still

solemnized it shall be "absolutely void").

¶47 This court held that the marriage between the

plaintiff and her first husband was invalid because the first

husband was still married to his first wife. Id. at 68.
Looking to the divorce statutes in Wis. Stat. ch. 109, the court

explained when actions for divorce or annulment are appropriate:

When the action is for a divorce for any of the
causes named in the statutes, it is necessarily upon
the assumption that there has been a valid marriage,
or one binding, at least, until adjudged void. But
when the validity of the marriage itself is to be
determined, then the action should be to affirm or to
annul the marriage, and the judgment of affirmance or
nullity therein is made by statute "conclusive upon
all persons concerned."
Id. at 75 (citing Wis. Stat. ch. 109, §§ 2348, 2350–2352
(1878)). While seeming to conclude that annulment was the

method to void an invalid marriage, the court also said:

The marriage between the plaintiff and [her first
husband] being absolutely void ab initio, it was good
for no legal purpose, and its invalidity may be
maintained in any proceeding in any court between any
parties, whether in the life-time or after the death
of the supposed husband or wife, or both, and whether
the question arises directly or collaterally. It is
otherwise where the marriage is voidable merely.

21
 No. 2011AP1176 & 2011AP1177

Id. at 69 (emphasis added) (citations omitted). Williams cited

two treatises in support of this proposition. Id. (citing 1

Joel Prentiss Bishop, Commentaries on the Law of Marriage and

Divorce, with the Evidence, Practice, Pleading, and Forms; Also

of Separations Without Divorce, and of the Evidence of Marriage

in All Issues § 105 (6th ed. 1881) [hereinafter Bishop]; 2 Simon

Greenleaf, A Treatise on the Law of Evidence § 464 (10th ed.

1868)). Bishop cited numerous state and federal cases from the

early to mid-1800s that involved questions about the validity of

marriage during either the lifetime or after the death of the

parties to a marriage. Bishop, supra, at § 105 n.2.

¶48 Thus, the Williams court concluded that a void

marriage, whatever the mechanism or process for challenging the

validity of the marriage, may be challenged in the lifetime or

after the death of the marriage parties, directly or

collaterally. See Williams, 63 Wis. at 69.

¶49 This court interpreted the revised marriage statutes16

again in Lyannes v. Lyannes, 171 Wis. 381, 177 N.W. 683 (1920),

16
In 1909 the legislature enacted several changes to the
marriage statutes relevant to this appeal. Wisconsin Stat. ch.
107 "Of Marriage" kept the same restrictions on who may marry:
no one with a husband or wife still living, nor between parties
nearer of kin than first cousins, and no one with mental
incapacity. § 2, ch. 323, Laws of 1909. However, Wis. Stat.
ch. 109 "Of Divorce" contained a new Section 2351 listing the
grounds upon which a marriage may be annulled: impotence;
consanguinity; when either party had a husband or wife still
living; fraud, force, or coercion; insanity or "want of
understanding"; and non-age of either party. § 8, ch. 323, Laws
of 1909. Thus, the legislature placed limits on when an
annulment action could be brought.

22
 No. 2011AP1176 & 2011AP1177

a case involving two Wisconsin residents who married in

Michigan, although one party was underage and neither party

obtained consent of parents. Id. at 382–83 (statement of the

case). The plaintiff brought an action to annul the marriage

and to declare it void. Id. at 383.

¶50 The Lyannes court noted that "public policy has

consistently and continuously recognized substantially three

different classes" of marriage or claims of marriage: valid,

void, and voidable. Id. at 389–90.
¶51 Lyannes concluded that in the valid marriage the

parties are competent to contract and have complied with

statutory requirements. Id. at 389.

¶52 In the void marriage, the parties, "by reason of some

positive inhibition of the law, are absolutely disabled and

prohibited from sustaining to each other the lawful relationship

of husband and wife." Id. Lyannes held that a void marriage is

"an absolute nullity from its very beginning and cannot be

ratified." Id. at 390.

¶53 Finally, Lyannes addressed the voidable marriage,

which "may subsequently ripen into an absolute marriage, and is

Further changes were made to the marriage statutes in 1917.
Twenty-seven new sections were added to Wis. Stat. ch. 107 on
"Marriage," including Section 2339n——21., which was entitled
"Unlawful marriages void; validation." § 3, ch. 218, Laws of
1917. This section held that all marriages contracted in
violation of Section 2339n——1. (valid marriages must be
licensed, performed by an authorized celebrant, and in the
presence of two competent witnesses) shall be "null and void,"
but that the parties could validate the marriage later by
complying with the statutory requirements. Id.

23
 No. 2011AP1176 & 2011AP1177

considered valid and subsisting until annulled by judgment of a

court of competent jurisdiction." Id. at 391. The Lyannes

court admitted that the distinction between void and voidable

marriages is "often shadowy and the line hard to place," with

both forms "intermingled" in Wis. Stat. ch. 107's prohibitions

on marriage and Wis. Stat. ch. 109's causes for which marriages

may be annulled. Id. In either case, however, Lyannes held

that the 1909 statutory changes made annulment "the proper

remedy to set aside both the void and the voidable marriage."

Id. at 392.
¶54 However, the Lyannes court retained language similar

to the Williams decision more than three decades earlier:

In the void marriage the relationship of the
parties, so far as its being legal is concerned, is an
absolute nullity from its very beginning and cannot be
ratified. It may be questioned at any time during the
life of both, and, with some statutory
exceptions[17] . . . , after the death of either or

17
The exception that the Lyannes court cites was Wis. Stat.
§ ch. 109, § 2351(2) (1919). Lyannes v. Lyannes, 171 Wis. 381,
390, 177 N.W. 683 (1920). Section 2351 listed the causes for
annulment, including consanguinity ("where the parties are
nearer of kin than second cousins") in subsection (2). However,
subsection (2) also directed that "when any such marriage shall
not have been annulled during the lifetime of the parties, the
validity thereof shall not be inquired into after the death of
either party."

24
 No. 2011AP1176 & 2011AP1177

both, and generally whether the question arises
directly or collaterally. As between the two
individuals concerned no rights spring therefrom, and,
generally speaking, except as modified by positive
legislation, it needs no adjudication by a court that
it is void. That such is the law of this state has
been repeatedly held.
Id. at 390 (emphasis added) (citations omitted). Therefore, the

Lyannes court continued to recognize the ability of a court to

invalidate a marriage after death.18

¶55 Sixteen years later, in the estate case of King v.
Canon, 221 Wis. 322, 266 N.W. 918 (1936), the validity of a

deceased woman's marriage was questioned because she was an

This additional language prohibiting posthumous inquiry
into a particular cause for annulment is noteworthy. Here, the
legislature unambiguously prohibited the questioning of a
marriage's validity, based on consanguinity, after one of the
parties died; by contrast, no such prohibition appears with
respect to mental incapacity of a party. The legislature's
break with the common law could not have been clearer,
illustrating that when the legislature wants to contravene the
common law it does so clearly and unambiguously. See infra,
¶76.
18
In 1925 the marriage and divorce statutes were
renumbered. Wisconsin Stat. ch. 107 on "Marriage" was
renumbered as Wis. Stat. ch. 245, and Wis. Stat. ch. 109, now
titled simply "Divorce," was renumbered as Wis. Stat. ch. 247.
§ 1, ch. 4, Laws of 1925.

In the 1979–80 legislative session, Wis. Stat. ch. 245 on
"Marriage" was renumbered Wis. Stat. ch. 765. § 48, ch. 32,
Laws of 1979. Wisconsin Stat. ch. 247 on "Actions Affecting
Marriage" was renumbered Wis. Stat. ch. 767, § 50, ch. 32, Laws
of 1979, and the title was changed to "Actions Affecting the
Family." Chapter 32, Laws of 1979 (emphasis added).

25
 No. 2011AP1176 & 2011AP1177

epileptic and incapable of contracting marriage in this state.19

Id. at 323–25. The question before this court was whether the

marriage of the decedent——originally contracted in Illinois but

contrary to the existing laws of this state——was void. Id. at

324. The King court concluded that, because Chapter 218, Laws

of 1917 prohibited epileptics from contracting marriage, Canon's

marriage was void. Id. at 327. Quoting Lyannes, the King court

reiterated that void marriages may be questioned after the death

of the parties. Id. at 328 (quoting Lyannes, 171 Wis. at 390).
¶56 Once again, in Davidson v. Davidson, 35 Wis. 2d 401,

151 N.W.2d 53 (1967), this court had occasion to interpret the

marriage statutes in an action for annulment brought by a wife

who alleged that her husband was still married to another woman

at the time of the marriage ceremony. Id. at 403 (statement of

the case). However, the wife died before the annulment action

was brought to trial. Id. at 404. The circuit court denied the

application of the wife's estate to continue the annulment

action. Id.

¶57 According to the Davidson court, the issue of whether

to allow the annulment action to continue depended upon whether

the marriage was void or voidable:

If the marriage was voidable it was valid and in
effect at the time of [the second wife]'s death and
the personal cause of action for annulment abated at

19
Wisconsin Stat. § 245.03(1) (1925), in effect at the time
of the marriage at issue in the case, stated that, "[n]o insane
person, epileptic, or idiot shall be capable of contracting
marriage."

26
 No. 2011AP1176 & 2011AP1177

the time of her death. If the marriage was void during
its entirety the cause of action survives in her
estate and the court could retain jurisdiction to
declare the marriage void and restore her property to
the estate.
Id. at 406 (emphasis added) (footnote omitted). The Davidson

court looked to Lyannes' definitions of void and voidable, id.

at 406–07, but also focused on another set of definitions:

[A] marriage may be considered voidable although
prohibited by law when it is possible, under any
circumstances, for the parties to contract the
marriage, or subsequently to ratify it, while it
should be considered void if it is impossible for them
under the law to contract it, and if it is impossible
for them subsequently by any conduct to ratify it, and
if the statute expressly declares that the marriage is
void.
Id. at 407 (emphasis added) (internal quotation marks and

citation omitted).

¶58 Other more modern cases continued to recognize a

common law right to post-death challenges to the validity of a

marriage. See, e.g., Corning v. Carriers Ins. Co., 88

Wis. 2d 17, 21, 276 N.W.2d 310 (1979); Estate of Gibson v.

Madison Bank & Trust Co., 7 Wis. 2d 506, 96 N.W.2d 859 (1959).

¶59 The central holding of Estate of Toutant——that a court
can declare a marriage void after the death of one of the

parties——comports with persuasive authority on the topic. An
American Law Reports article discusses general attacks on

marriages after the death of a party:

The later cases, as do the earlier ones, amply
show that, except as statutes occasionally otherwise
provide, the question whether the validity of a
marriage is open to attack in a judicial proceeding
subsequently to the death of a party to the marriage

27
 No. 2011AP1176 & 2011AP1177

ordinarily resolves itself into the inquiry whether
the marriage is in the true sense void, or, on the
contrary, voidable only.

If the marriage is void, the fact of nullity may
be shown, directly or collaterally, after the death of
either or both of the parties.
Annotation, Right to Attack Validity of Marriage After Death of

Party Thereto, 47 A.L.R.2d 1393, 1394 (1956). The article then

specifically discusses marriages that are challenged due to the

mental incompetency of a party:

The later cases show that the rule of the common
law, and the one which ordinarily prevails in the
absence of contrary statutory provision or
implication, is that the marriage of a person who was
insane or otherwise mentally incompetent to enter into
the marriage, is void, and consequently open to attack
after the death of either or both of the parties.
Id. at 1396. American Jurisprudence also discusses the

consequences of void marriages specifically:

As a rule, a void marriage, as distinguished from
one that is merely voidable, is null from its
inception, that is, when a marriage is void, it is for
most purposes, as if no marriage had taken place.
Under this view, a void marriage is good for no legal
purpose, and is not attended or followed by any of the
incidents of a valid marriage. It can be attacked
either directly or collaterally, and in fact, a
marriage void ab initio is subject to collateral
attack at any time whereas a marriage merely voidable
cannot be annulled after the death of either spouse.
52 Am. Jur. 2d Marriage § 82 (2011) (emphasis added) (footnotes
omitted). See also 55 C.J.S. Marriage § 43 (2009) (describing a

void marriage as a nullity, "subject to both direct and

28
 No. 2011AP1176 & 2011AP1177

collateral attack, . . . at any time," including after the death

of either or both parties).20

¶60 Therefore, the holding in Estate of Toutant is based

on the common law principle that, in either direct or collateral

proceedings, a marriage may be declared void after the death of

one of the parties. Our case law has always followed this

common law principle.

C. What is a Void Marriage?

¶61 As noted earlier, Davidson provided a comprehensive
definition of a void marriage: "if it is impossible for [the

parties] under the law to contract it, and if it is impossible

for them subsequently by any conduct to ratify it, and if the

statute expressly declares that the marriage is void."

Davidson, 35 Wis. 2d at 407 (internal quotation marks omitted).

¶62 Wisconsin Stat. ch. 765 sets out the criteria for who

may contract a marriage and who shall not marry. Wisconsin

Stat. § 765.21 provides that "[a]ll marriages hereafter

contracted in violation of ss. 765.02, 765.03, 765.04 and 765.16

shall be void, except as provided in ss. 765.22 and 765.23."

¶63 Wisconsin Stat. § 765.01 requires that an individual

be "capable in law of contracting" to marry in this state. See

also Wis. Stat. § 765.02(1) ("Every person who has attained the

20
The article in 55 C.J.S. Marriage § 43 describes a void
marriage as a nullity, "subject to both direct and collateral
attack, by anyone, at any time . . . ." (Emphasis added.) The
phrase "by anyone" makes the proposition too broad. To attack
the validity of a marriage, a person must have standing to raise
the issue.

29
 No. 2011AP1176 & 2011AP1177

age of 18 years may marry if otherwise competent."); Wis. Stat.

§ 765.03 ("A marriage may not be contracted if either party has

such want of understanding as renders him or her incapable of

assenting to marriage."); Wis. Stat. § 765.21 (a marriage is

void if it is contracted contrary to certain provisions in Wis.

Stat. ch. 765).

¶64 The death of an incompetent party to an alleged

marriage makes it impossible for the parties to ratify the

marriage if the party remains incompetent from the time of the

marriage until death. More specifically, if a party to an

alleged marriage is incompetent at the time of a marriage

ceremony and subsequently dies before he or she is able to

ratify the marriage, the fatal defect to the marriage can never

be cured.

D. The UDJA is the Proper Mechanism to Declare a Marriage Void

¶65 As explained in Estate of Toutant, Wis. Stat.
§ 806.04, the UDJA is the mechanism for voiding a marriage when

one of the parties to the marriage is dead. See Estate of

Toutant, 247 Wis. 2d 400, ¶¶12–14.

¶66 Wisconsin Stat. § 806.04, the UDJA, reads, in relevant

part:

(1) Scope. Courts of record within their
respective jurisdictions shall have power to declare
rights, status, and other legal relations whether or
not further relief is or could be claimed. No action
or proceeding shall be open to objection on the ground
that a declaratory judgment or decree is prayed for.
The declaration may be either affirmative or negative
in form and effect; and such declarations shall have
the force and effect of a final judgment or decree,

30
 No. 2011AP1176 & 2011AP1177

except that finality for purposes of filing an appeal
as of right shall be determined in accordance with s.
808.03 (1).

. . . .

(4) Representatives, etc. Any person interested
as or through a personal representative, trustee,
guardian, or other fiduciary, creditor, devisee,
legatee, heir, next of kin, or cestui que trust in the
administration of a trust, or of the estate of a
decedent, infant, individual adjudicated incompetent,
or insolvent, may have a declaration of rights or
legal relations in respect to the administration of
the trust or estate . . . .

(5) Enumeration not exclusive. The enumeration
in subs. (2), (3) and (4) does not limit or restrict
the exercise of the general powers conferred in sub.
(1) in any proceeding where declaratory relief is
sought, in which a judgment or decree will terminate
the controversy or remove an uncertainty.
Wis. Stat. § 806.04(1), (4), (5).21

¶67 A declaratory judgment is a "binding adjudication that

establishes the rights and other legal relations of the parties

without providing for or ordering enforcement." Black's Law

Dictionary 918 (9th ed. 2009). Declaratory relief may be

obtained in the following circumstances:

(1) There must exist a justiciable controversy——
that is to say, a controversy in which a claim of
right is asserted against one who has an interest in
contesting it.

21
The declaratory judgment statute has often been used in
cases involving the status of marriages. Cf. Georgiades v. Di
Ferrante, 871 S.W.2d 878 (Tex. App. 1994) (determination of
whether common law marriage existed between parties); Henry v.
Henry, 106 N.W.2d 570 (Mich. 1960) (wife's challenge to whether
husband's Nevada divorce was valid).

31
 No. 2011AP1176 & 2011AP1177

(2) The controversy must be between persons
whose interests are adverse.

(3) The party seeking declaratory relief must
have a legal interest in the controversy——that is to
say, a legally protect[a]ble interest.

(4) The issue involved in the controversy must
be ripe for judicial determination.
Loy v. Bunderson, 107 Wis. 2d 400, 409, 320 N.W.2d 175 (1982)

(quoting State ex. rel. La Follette v. Dammann, 220 Wis. 17, 22,

264 N.W. 627 (1936) (internal quotation marks omitted)). An
action under the UDJA can be brought either directly or

collaterally, in estate actions, in contract actions, and in

actions construing statutes or ordinances. See Wis. Stat.
§ 806.04; see also Bucca v. State, 128 A.2d 506 (N.J. Super. Ct.

Ch. Div. 1957) (petition brought under UDJA to validate marriage

while both were parties still alive); In re O'Quinn, 355 S.W.3d

857 (Tex. App. 2011) (UDJA used in an estate action that inter

alia decided the validity of a marriage); State ex rel. Joyce v.

Farr, 236 Wis. 323, 295 N.W. 21 (1940) (motion for declaratory

judgment in estate action); Miller v. Currie, 208 Wis. 199, 242

N.W. 570 (1932); Shovers v. Shovers, 2006 WI App 108, 292

Wis. 2d 531, 718 N.W.2d 130; Estate of Lonquest v. Jones, 526

P.2d 994 (Wyo. 1974) (UDJA used for determination of heirship).

¶68 The Corning case provides a good illustration of why

declaratory judgment authority to review a marriage after the

death of one of the parties is necessary. James Corning died

from injuries suffered when a truck insured by Carriers collided

with the truck operated by him. Corning, 88 Wis. 2d at 19. The

wrongful death case was settled for $200,000, contingent upon

32
 No. 2011AP1176 & 2011AP1177

Colleen Corning establishing that she was the decedent's wife

(the two were married in Illinois less than a year after

Colleen's divorce in her first marriage). Id. at 19–20. The

court ruled in favor of Colleen, but it observed: "A wrongful

death action is not an action to affirm or annul a marriage. We

believe that Carriers does have the right to assert the defense

that Colleen Corning is not the spouse of James Corning." Id.

at 21.

¶69 As Estate of Toutant affirmed, Wis. Stat. ch. 765
establishes the legal basis for invalidating a marriage, whereas

the UDJA provides the mechanism for doing so when an interested

party is not able to seek an annulment.

E. 2005 Changes to the Annulment Statute Did Not Disturb the

Holding of Estate of Toutant

¶70 McLeod argues that even if Williams, Lyannes, and a

long line of our cases, including most recently Estate of

Toutant, retained the common law rule that allowed a court to

invalidate a marriage after death, the changes to Wis. Stat. ch.

767 by 2005 Wis. Act 443 left no doubt that the legislature

abrogated this rule and that annulment is the only way to

invalidate a marriage. We disagree.

¶71 At the time the court of appeals decided Estate of

Toutant, the annulment statute, then-Wis. Stat. § 767.03, read

in part: "No marriage may be annulled or held void except

33
 No. 2011AP1176 & 2011AP1177

pursuant to judicial proceedings. No marriage may be annulled

after the death of either party to the marriage."22

¶72 In 2005 the Wisconsin Legislative Council's Special

Committee on Recodification of Ch. 767, Stats., Actions

Affecting the Family (the Special Committee), recommended

legislation to reorganize and revise the chapter.23 Wis. Legis.

Council Rep. to the Leg., Spec. Comm. on Recodification of Ch.

767, Stats., Actions Affecting the Family, at 5 (April 11,

2005). One of the changes suggested by the Special Committee,

and adopted into law, removed any reference in the annulment

statute to a judicial proceeding being used to "void" a

marriage. 2005 Wis. Act 443, §§ 23, 145. Thus, the current

annulment statute, Wis. Stat. § 767.313(2) reads in pertinent

22
The precise language relating to judicial proceedings has
been in the statutes since 1959. § 44, ch. 595, Laws of 1959.
The language on death of the parties was added in 1977. § 9,
ch. 105, Laws of 1977.
23
The report by the Special Committee, in making its report
to the Wisconsin Joint Legislative Council for introducing
legislation in the 2005–06 session, explained the charge to the
Special Committee as follows:

The committee was directed to conduct a recodification
of ch. 767, Stats., including possibly reorganizing
the chapter in a logical manner, renumbering and
retitling sections, consolidating related provisions,
modernizing language, resolving ambiguities in
language, codifying court decisions and making minor
substantive changes.

Wis. Legis. Council Rep. to the Leg., Spec. Comm. on
Recodification of Ch. 767, Stats., Actions Affecting the Family,
at 5 (April 11, 2005).

34
 No. 2011AP1176 & 2011AP1177

part: "A judicial proceeding is required to annul a marriage. A

marriage may not be annulled after the death of a party to the

marriage."

¶73 2005 Wisconsin Act 443 contained an explanatory note

after the language amending the annulment statute to eliminate

the words "or held void." The note read: "Reference to voiding

a marriage is not included in the restated language because

[Wis. Stat.] ch. 767 does not include actions to void a

marriage." 2005 Wis. Act 443, § 145.

¶74 The explanatory note to the new Wis. Stat.

§ 767.313(2) in 2005 Wis. Act 443 means exactly what it says:

Chapter 767, on "Actions Affecting the Family," does not contain

an action to void a marriage. Wis. Stat. § 767.001(1). The

action to void a marriage comes through Wis. Stat. ch. 765 on

"Marriage." "[C]ourts must presume that a legislature says in a

statute what it means and means in a statute what it says

there." Kalal, 271 Wis. 2d 633, ¶39 (quoting Conn. Nat'l Bank

v. Germain, 503 U.S. 249, 253–54 (1992) (internal quotation

marks omitted)).

¶75 Drafting records for 2005 Wis. Act 443 do not indicate

that the legislature intended for annulment to be the only

remedy to invalidate a marriage. In a preliminary bill draft

for the Special Committee, a bill drafter asked, "Is it

necessary to continue reference to voiding a marriage (ch. 767

does not cover actions to void a marriage)?" Preliminary Draft,

WLC:0004/P1, Spec. Comm. on Recodification of Ch. 767, Stats.,

35
 No. 2011AP1176 & 2011AP1177

Actions Affecting the Family, Wis. Leg. Council, Madison, Wis.

(Oct. 15, 2002).24

¶76 We also observe that the Special Committee

incorporated explanatory notes into the body of draft

legislation, in part to "[i]dentify the source of the recodified

law (i.e., previous law, court decision, decision by the Special

Committee) and, if previous law, the previous location of the

provisions." Memorandum from Don Dyke, senior staff attorney,

Wis. Leg. Council to Members of the Spec. Comm. on

Recodification of Ch. 767, Stats., Actions Affecting the Family

(Sept. 20, 2002) (available at Wis. Leg. Council, Madison,

Wis.). The removal of "or held void" in 2005 Wis. Act 443,

§ 145, and in earlier bill drafts, was accompanied by an

explanatory note that did not reference the Estate of Toutant

decision. Thus, we are not persuaded that this change by the

Special Committee came in response to Estate of Toutant.

Compare 2005 Wis. Act 443, § 145, Note, with 2005 Wis. Act. 443,

§ 166, Note (citing Racine Family Court Comm'r v. M.E. and S.A.,

165 Wis. 2d 530, 478 N.W.2d 21 (Ct. App. 1991)).

¶77 If the legislature had wanted to eliminate this common

law remedy, then it would have done so in clear, unambiguous

24
The "question" whether to retain the reference to the act
of voiding in Wis. Stat. ch. 767 was entirely appropriate
inasmuch as the revision of the chapter involved efforts to
remove unnecessary language. Wisconsin Stat. § 767.001(1)
defines "[a]ction affecting the family" to include affirmance of
marriage, annulment, divorce, and legal separation, but does not
list voiding a marriage. Reference to voiding is only in Wis.
Stat. ch. 765.

36
 No. 2011AP1176 & 2011AP1177

language. See, e.g., Schmidt v. N. States Power Co., 2007 WI

136, ¶67, 305 Wis. 2d 538, 742 N.W.2d 294; Aslakson v. Gallagher

Bassett Servs., 2007 WI 39, ¶82 n.34, 300 Wis. 2d 92, 729

N.W.2d 712; Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81,

¶25, 244 Wis. 2d 758, 628 N.W.2d 833. See also John P. Foley,

Comment, The Voidable Void Marriage in Wisconsin, 49 Marq. L.

Rev. 751, 752 (1966) (asserting that annulment "applies only to

a direct attack upon the status of marriage" and that marriage

"may also be attacked collaterally and the court can declare the

marriage void when rights incident to marriage are in

question"). If this common law principle were indeed abrogated,

it would adversely affect the UDJA and cases maintaining the

common law right to post-death challenges to the validity of a

marriage. See supra, ¶58.
¶78 Finally, allowing a court to invalidate a marriage

after the death of one of the parties to a void marriage accords

with public policy and legislative intent on marriage. The

declared intent of the legislature in Wis. Stat. chs. 765 to 768

is "to promote the stability and best interests of marriage and

the family." Wis. Stat. § 765.001(2). We do not see how the

"best interests of marriage" are protected where legitimate

questions about a spouse's capacity to contract marriage are

precluded from consideration after the spouse dies.

¶79 McLeod argues that a decedent's family has no recourse

to question the validity of marriage after a party to the

marriage dies. That rule would apply not only to cases

commenced after the spouse dies but also to annulment actions
37
 No. 2011AP1176 & 2011AP1177

commenced when the spouse was living but not completed before

the spouse dies. McLeod would have us hold that the legislature

intended that an incompetent decedent's estate or an aggrieved

party is simply out of luck——that an incomplete annulment action

cannot be converted into an action to declare the marriage void.

Troubling scenarios can be avoided by an option to declare a

marriage void after the death of one of the parties, either

directly or in a collateral proceeding. See Davidson, 35

Wis. 2d at 407.

¶80 Interpreting the changes to the annulment statute as a

limitation on courts would drastically curtail a court's power

to address fraud, mistake, and other exigencies in a disputed

marriage in order to "declare rights, status, and other legal

relations." Limiting a court's power would effectively shut off

declaratory remedies for parties in an estate action.

¶81 Once again, the issue in this case is whether a court

may consider the validity of a marriage after the death of one

of the parties to the marriage. In holding that a court has

this power, we do not take a position on the merits of the

present dispute. On remand, the marriage between Laubenheimer

and McLeod will be presumed valid, and the objectors will have

the burden of proving that it is void by clear and convincing

evidence.

¶82 We believe that Laubenheimer's capacity to enter into

marriage is somewhat analogous to a person's capacity to make or

revoke a will. Wis. Stat. § 853.01. "Generally, a person

competent to make a will may give or devise his property as he
38
 No. 2011AP1176 & 2011AP1177

wishes within the public policy of the state." Farrell v. Nw.

Loan & Trust Co., 199 Wis. 273, 278, 226 N.W. 306 (1929). On

remand, the circuit court will have the responsibility of

weighing the evidence to determine whether Laubenheimer had the

capacity to enter into marriage at the time of the marriage

ceremony. Will contest cases such as Schultz v. Lena, 15

Wis. 2d 226, 112 N.W.2d 591 (1961); Brandon v. Hagen, 264

Wis. 269, 58 N.W.2d 636 (1953); and Smits v. Valley, 202

Wis. 434, 232 N.W. 845 (1930), may provide the court with some

assistance.

IV. CONCLUSION
¶83 In Estate of Toutant, the court of appeals held that

there is a fundamental distinction between annulment and a

judicial declaration that a marriage is void. The court of

appeals further held that in an estate action challenging a

marriage, a court may use its declaratory judgment powers to

declare that a marriage prohibited by law was void and incapable

of validation by the parties to the marriage.

¶84 We conclude that the holdings and analysis in Estate

of Toutant are correct. Annulment is certainly an appropriate

remedy to void a marriage when the parties to the marriage are

still alive, but it is not the exclusive remedy to challenge the

validity of a marriage. The common law drew a distinction

between an annulment and a declaration that a marriage was void,

especially a declaration after the death of one of the parties.

Our statutes and case law have preserved that distinction.

39
 No. 2011AP1176 & 2011AP1177

¶85 Wisconsin Stat. ch. 765 sets out the criteria for a

valid marriage in this state. Failure to meet one of these

criteria often results in a void marriage. An action under the

UDJA is the established mechanism for testing the validity of a

marriage in an estate case because the UDJA explicitly provides

standing for interested parties in an estate action.

¶86 The change in the annulment statute in 2005 Wis. Act

443 did not alter the holdings in the Estate of Toutant case.

There is no evidence that the legislature sought to curtail a

court's power to address fraud, mistake, and other exigencies in

a disputed marriage in order to "declare rights, status, and

other legal relations." Wis. Stat. § 806.04(1). Limiting a

court's power to address these issues would effectively shut off

declaratory remedies for parties in an estate action.

¶87 We remand the case to the circuit court for further

action consistent with this opinion.

By the Court.—The order of the circuit court is reversed

and the cause is remanded to the circuit court for further

proceedings consistent with this opinion.

40
 No. 2011AP1176 & 2011AP1177.akz

¶88 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I write

separately because I adopt neither the majority opinion nor

Justice Gableman's dissenting opinion, and I urge the

legislature to consider taking action. In Wisconsin, statutes

not common law, govern marriage, divorce, and annulment.

Because the issues raised in this case are not clearly addressed

in the statutes, the legislature should consider the policy

reasons that militate in favor of and against the positions

taken by the majority opinion and by Justice Gableman's dissent.

In sum, I dissent because while case law may support a court's

ability to void, as a matter of law, a marriage that is invalid

ab initio, neither case law nor statutes support a court taking

such action under the facts of this case.

¶89 The majority opinion concludes that the circuit court

always has the ability to declare a marriage void after the

death of one of the parties to the marriage. See majority op.,

¶¶83-84. I part ways with the majority's sweeping opinion,
under which any interested person may bring a declaratory action

to void another person's marriage. The majority's policy reason

is as follows: "We do not see how the 'best interests of

marriage' are protected where legitimate questions about a

spouse's capacity to contract marriage are precluded from

consideration after the spouse dies." See majority op., ¶78

(quoting Wis. Stat. § 765.001(2)). The majority opinion

however, is not cabined, as was previous case law, to an

uncontroverted paper review of a marriage that was void ab

1
 No. 2011AP1176 & 2011AP1177.akz

initio. See infra, ¶93. The majority does not seem concerned

with any limitations on such an action, nor does it lament that

a decedent would never be able to defend his or her decision to

marry. Notably, even an individual who has been declared

legally incompetent and in need of a guardian may retain the

capacity to marry. See Wis. Stat. §§ 54.25(2)(c)1.a., 51.59(1)

(2009-10).1 While the majority does opine that a marriage is

presumed valid, it does not set forth the burden of proof that

the challenger must meet, nor does it sufficiently address the

practical evidentiary concerns raised by the circuit court. See

majority op., ¶¶81-82; infra, ¶95.

¶90 On the other hand, I part ways with Justice Gableman's

sweeping dissent, which concludes that a court can never void a

marriage, even a marriage that is undisputedly void ab initio.

See Gableman dissent, ¶98. Justice Gableman concludes that the

legislature has made a public policy determination by not

providing for a court to posthumously void a marriage. Id.,

¶123. Under Justice Gableman's approach, I find it troubling
that a court would be powerless to posthumously void an

undisputedly invalid marriage and that those who are rightfully

entitled to receive the decedent's estate would be left with no

recourse, even if the marriage was undisputedly void ab initio.

¶91 Different, yet reasonable, considerations support the

conclusions reached by either the majority opinion or Justice

Gableman's dissent. As a matter of policy, the legislature

1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

2
 No. 2011AP1176 & 2011AP1177.akz

could reasonably conclude that a court is endowed with the power

to posthumously void a marriage always, sometimes, or never.

¶92 I dissent because no statute clearly provides a

circuit court with the authority to posthumously void a marriage

in a probate matter under the circumstances of this case. In

Wisconsin, marriage, divorce, and annulment are governed by

statute. See Wis. Stat. ch. 765; Watts v. Watts, 137

Wis. 2d 506, 519 n.11, 405 N.W.2d 303 (1987) (noting that there

is no common law marriage in Wisconsin); see Gableman dissent,

¶110 (criticizing the majority opinion for relying on a common

law action to void a marriage when marriage, divorce, and

annulment are all governed by statute). No statute under Wis.

Stat. chs. 765 (marriage), 767 (actions affecting the family),

or 851-82 (probate), specifically provides the circuit court

with the power to void a marriage posthumously. The statutes

are clear, however, that a court may not annul a marriage after

the death of one of the parties to the marriage. Wis. Stat.

§ 767.313(2).
¶93 Case law may provide the court with the power to void

a marriage after the death of one of the parties when the

marriage is undisputedly void ab initio. The majority relies

heavily on that case law and common law principles to conclude

that the circuit court has the power to posthumously void a

marriage.2 However, as Justice Gableman's dissent discusses,
2
The circuit court distinguished this case from Davidson v.
Davidson, 35 Wis. 2d 401, 151 N.W.2d 53 (1967), and Ellis v.
Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633
N.W.2d 692, based on the uncontested evidence that the marriages
were void:
3
 No. 2011AP1176 & 2011AP1177.akz

subsequent legislative action arguably undermines the

precedential value of those cases.3 See Gableman dissent, ¶111.

In addition, the facts of those cases are distinguishable from

the facts of the case at issue. For example, in Toutant, the

decedent Toutant had married Ellis within 30 days of Ellis's

The arguments of those parties seeking to void the
marriage in both Davidson and Toutant were based on
uncontested factual realities. In Davidson, it was
uncontested that Robert was still married to his first
wife Mildred, at the time his marriage to Leona was
solemnized on March 12, 1956. In Toutant, it was
uncontested that Marjorie and John were married only
30 days following his Scottish divorce. Those
uncontested factual realities served as the basis of
the argument that each of the respective marriages was
contrary to Wisconsin law. . . . The proponents of
invalidating [Nancy's] marriage need to prove that, in
fact, the decedent was incompetent at the time of her
marriage to Mr. McLeod. That is not a given. That is
not undisputed.
3
The precedential value of those cases is questionable
because the legislature changed a key provision of Wis. Stat.
§ 767.313 since those cases were decided. See majority op.,
¶¶70-73. At the time Toutant was decided, then-Wis. Stat.
§ 767.03 (1999-2000) read "No marriage may be annulled or held
void except pursuant to judicial proceedings. No marriage may
be annulled after the death of either party to the marriage."
(Emphasis added.) In 2005, the legislature amended that
language to remove the reference to a judicial proceeding to
"void" a marriage. 2005 Wis. Act 443, § 145. A legislative
note to that Wisconsin Act states: "Reference to voiding a
marriage is not included in the restated language because [Wis.
Stat.] ch. 767 does not include actions to void a marriage."
That note can be read in two ways. First, the note can be read
to state that the legislature was responding to Toutant and
removing the court's ability to "void" a marriage, leaving
annulment and divorce as the only proceedings to terminate a
marriage. Second, the legislature could have been removing the
reference to voiding a marriage within ch. 767 (actions
affecting the family), because that action properly belongs in
ch. 765 (marriage) or is a product of common law.

4
 No. 2011AP1176 & 2011AP1177.akz

divorce from a prior spouse. Ellis v. Estate of Toutant, 2001

WI App 181, ¶6, 247 Wis. 2d 400, 633 N.W.2d 692. In Wisconsin,

a person is prohibited from marrying again within six months of

a divorce. Wis. Stat. § 765.03(2). Similarly, in Williams and

Davidson, the marriages were challenged because, in both cases,

one of the parties to the marriage was alleged to have been

married at the time the challenged marriage took place.

Williams v. Williams, 63 Wis. 58, 23 N.W. 110 (1885); Davidson

v. Davidson, 35 Wis. 2d 401, 151 N.W.2d 53 (1967). The statutes

clearly prohibit a person from being marriage to two people at

the same time. See Wis. Stat. § 765.03; Davidson, 35 Wis. 2d at

407; majority op., ¶44. Similarly, in King v. Canon, 221

Wis. 322, 266 N.W. 918 (1936), the validity of a decedent's

marriage was challenged because the decedent was an epileptic.

However, at that time, a statute prohibited an epileptic from

marrying. Id. at 325; majority op., ¶55. Thus, in these cases,

a court could conclusively determine that the challenged

marriage was void based upon the documentation alone.
¶94 Significantly, to the extent that these cases support

the circuit court's ability to void a marriage after death, in

each case, unlike the case at issue, the contested marriage was

undisputedly void ab initio. Cf. State v. Hess, 2010 WI 82,

¶¶71-73, 327 Wis. 2d 524, 785 N.W.2d 568 (Ziegler, J.,

concurring) (discussing a warrant that was void ab initio, as

the circuit court lacked the authority to issue the challenged

warrant). In other words, as a matter of law, the contested

marriage was undisputedly invalid from inception. See Lyannes

5
 No. 2011AP1176 & 2011AP1177.akz

v. Lyannes, 171 Wis. 381, 177 N.W. 683 (1920) (discussing void

and voidable marriages); majority op., ¶¶52-53. In such

actions, for example, the party challenging the marriage simply

submitted documentary evidence to prove that the marriage was

void, and the court could determine the validity of the

challenged marriage from the documents alone. The evidentiary

concerns raised by the circuit court in the case at issue, see

infra, ¶95, are not of concern in such uncontroverted matters.

¶95 In this case, however, Patricia Mudlaff argued that

her stepmother Nancy Laubenheimer's marriage to Joseph McLeod

was invalid because Nancy lacked the mental capacity to enter

into the marriage. To determine whether Nancy was competent to

marry Joseph, the court would presumably need to hear evidence

such as examinations and testimony from doctors on Nancy's

mental state at the time she married Joseph. As the circuit

court recognized, that is a difficult task given Nancy's death:

[I]f this Court is wrong in its determination that a
court cannot invalidate [Nancy's] marriage, this Court
will need great assistance from the reviewing court in
determining what sort of evidence can be raised at
this point in time to challenge [Nancy's] competency.
Issues such as privilege, hearsay, the 'dead man's
statute' and other relevancy concerns all come in to
question where the potential 'ward' is deceased.
Additionally, great prejudice could result if a party
seeking a determination [of] incompetency (and lack of
right to consent to marriage) was able to have mom (or
step-mom) examined by a doctor of [his or her]
choosing prior to her death, whereas those opposed to
the incompetency finding have not. The equities of
that scenario are highly questionable.
I would affirm the circuit court's reasoning. Since the case

law is questionable, and the relevant statutory provisions do

6
 No. 2011AP1176 & 2011AP1177.akz

not clearly provide that a court has the power in a probate

matter to void a marriage posthumously, legislative response to

this situation is seemingly appropriate.

¶96 Strong policy concerns and equities militate both in

favor of and against allowing a court to void a marriage after

death. To the extent that the legislature deems it appropriate

to endow courts with the authority to void marriage under

certain circumstances, it should clarify the court's power to so

act. Current statutes and case law do not clearly empower a

court with the ability to void a marriage after the death of one

of the parties to the marriage. As marriage, divorce, and

annulment are all governed by statute, the legislature should

likewise consider when, if ever, a marriage may be deemed void

after the death of one of the parties to the marriage.

¶97 For the foregoing reasons, I respectfully dissent.

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 No. 2011AP1176 & 2011AP1177.mjg

¶98 MICHAEL J. GABLEMAN, J. (dissenting). There is

great confusion in this area of Wisconsin law, and there has

been for many years. The majority makes a valiant effort to

clarify it, exhaustively and eloquently summarizing the

statutory and jurisprudential developments that have brought us

to the present quandary. Unfortunately, though, the court's

ultimate resolution of the question presented codifies a legal

misunderstanding that has been germinating for decades and now

bursts into full bloom. Although the issue we take up here is

not an easy one, it can and should be disposed of on the basis

of a simple proposition: annulment is the only process for

invalidating a marriage other than divorce, as per the

legislature's wishes, and that process cannot be undertaken

after the death of a spouse. It was the legislature's

prerogative to limit the remedies available to parties

challenging marriages, and it is not our place to expand them

beyond their statutory confines. Because the majority holds

otherwise, I respectfully dissent.

I. DISCUSSION

¶99 The majority cobbles together a variety of statutory

and common-law sources in its mission to prove the existence of
a posthumous means to invalidate marriage outside of annulment.

1
 No. 2011AP1176 & 2011AP1177.mjg

I take up each source in turn and demonstrate why it does not

substantiate the asserted power.1

A. THE ANNULMENT STATUTE DOES NOT SUPPORT THE ASSERTED POWER

¶100 The majority does not claim that Wis. Stat. § 767.313

(2009-10),2 the annulment statute, establishes the power to

nullify a marriage after death. Nevertheless, it is worth

beginning with the provision's history. For that history not

only provides no support for such a power, it actually

conclusively proves that none exists.

¶101 There is no need to set forth all the various and

sundry changes made to the statute over the decades, as the

majority ably does. For present purposes, there are only two

salient features to its evolution. First, in 1909 the

legislature began listing grounds for annulment, including

incompetence. Majority op., ¶49 n.16. At the same time, it

started to "place[] limits on when an annulment action could be

brought," id., most significantly barring the posthumous

annulment of a marriage between cousins. Wis. Stat. ch. 109,
§ 2351(2) (1909). In the ensuing years it continued that

process and, in 1977, imposed the most important limitation with

1
I agree with the majority's conclusion that the
incompetence of a spouse renders a marriage void, not voidable.
See majority op., ¶¶61-64. That common ground does not alter
the bottom line, however, because annulment is the exclusive
mechanism for invalidating any marriage, void or voidable, Falk
v. Falk, 158 Wis. 2d 184, 189, 462 N.W.2d 547 (Ct. App. 1990),
and for the reasons set forth below annulment cannot be utilized
after death.
2
All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated.

2
 No. 2011AP1176 & 2011AP1177.mjg

respect to this dispute, pronouncing that any annulment,

regardless of the grounds for the action, could no longer be

obtained after the death of either of the spouses. Majority

op., ¶71 n.22.

¶102 The second relevant turn of events began in 1959, when

the legislature inserted the following emphasized language into

the annulment statute: "[n]o marriage shall be annulled or held

void except pursuant to judicial proceedings." 1959 Wis. Laws,

ch. 595, § 44 (emphasis added). Nearly 50 years later the

legislature withdrew those three crucial words. 2005 Wis. Act

443.

¶103 Taken together, these two parallel developments

underscore two legislative directives: 1) lawmakers wanted to

restrict the circumstances in which marriages could be

invalidated, first ruling out posthumous invalidations for some

annulments as one of those restrictions, and then ruling out

posthumous invalidations altogether; and 2) they wanted, at one

point, to acknowledge a route to invalidation other than
annulment and then, at a later point, to retract that

acknowledgement. Stated differently, the right to a posthumous

annulment was taken away, and then the right to have a marriage

"held void" was as well. In sum, the majority restores to

circuit courts an authority that the legislature eradicated

through a hundred years of statutory refinement.

B. WISCONSIN STAT. § 765.03(1) DOES NOT SUPPORT THE ASSERTED

POWER

3
 No. 2011AP1176 & 2011AP1177.mjg

¶104 Since the history of the annulment statute is so

unhelpful to its cause, the majority focuses far more heavily on

another statute: Wis. Stat. § 765.03(1). That section provides

that "[a] marriage may not be contracted" in cases of sufficient

incompetence. In the majority's view, "[t]he action to void a

marriage comes through" § 765.03(1). Majority op., ¶74. This

cannot be so. Section 765.03 does not purport to endow courts

with the authority to do anything. It is true that the statutes

categorize a marriage with an incompetent spouse as "null and

void," Wis. Stat. §§ 765.21, 765.002(6), but nowhere, outside of

the annulment statute, do they empower courts to invalidate

marriages on that ground. The mere fact that a statute makes a

statement about the world does not entitle a court to do

whatever it likes with that statement. Indeed, the application

and enforcement of several of the most important rules in our

system of government are entirely outside the province of the

judiciary. See, e.g., Luther v. Borden, 48 U.S. 1 (1849)

(forbidding the courts, on political question grounds, from
considering cases concerning the federal constitution's

guarantee of a republican form of government). It is

particularly improbable that Wis. Stat. § 765.03 provides courts

with a license to enforce its requirements however they like

when there is another statute, only a few pages later in the

statute book, that is plainly designed as its enforcement

mechanism. See State ex rel. Kalal v. Circuit Court for Dane

Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110

("[S]tatutory language is interpreted . . . in relation to the

4
 No. 2011AP1176 & 2011AP1177.mjg

language of surrounding or closely-related statutes . . . .")

(citations omitted). Wisconsin Stat. § 765.03(1) spells out

grounds to invalidate marriages through the annulment process,

and with the limitations imposed on that process, including the

limitation preventing post-mortem annulments. Cf. Sinai

Samaritan Med. Ctr., Inc. v. McCabe, 197 Wis. 2d 709, 713 n.3,

541 N.W.2d 190 (Ct. App. 1995) (observing that an action to

invalidate a marriage as violative of § 765.03(1) must be filed

under the annulment statute). Wisconsin Stat. § 765.03(1)

provides the majority no succor.

C. THE DECLARATORY JUDGMENTS ACT DOES NOT SUPPORT THE

ASSERTED POWER

¶105 Perhaps sensing that Wis. Stat. § 765.03 cannot

withstand the weight it is asked to carry, the majority turns

also to the Declaratory Judgments Act, Wis. Stat. § 806.04. See

majority op., ¶¶65-69. That statute is not up to the task

either. As an initial matter, it is curious that the court

would place such heavy emphasis on the Act in this of all cases,
given that neither the objectors nor the circuit court ever

relied upon it. The circuit court granted a petition for formal

administration of the estate, not a motion for declaratory

judgment.

¶106 Even if the Declaratory Judgments Act had played a

role below, it should not play a role in our decision. Two of

the most universally accepted canons of statutory construction

compel us, respectively, to favor a more specific statute over a

more general one, see, e.g., Marlowe v. IDS Prop. Cas. Ins. Co.,

5
 No. 2011AP1176 & 2011AP1177.mjg

2013 WI 29, ¶45, 346 Wis. 2d 450, 828 N.W.2d 812, and to give

effect to every word the legislature enacted if possible. See,

e.g., State v. Koopmans, 210 Wis. 2d 670, ¶14, 563 N.W.2d 528

(1997). Both canons counsel against the majority's approach.

¶107 Wisconsin Stat. 767.313 was written specifically to

elucidate the process for obtaining a judicial determination

regarding the validity of a marriage. By contrast, the

Declaratory Judgments Act is exceptionally broad in reach and

used in all sorts of situations, including any number of

contexts that have nothing to do with marriage or family law

whatsoever. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277,

286-87 (1995) (discussing the breadth of declaratory judgment

actions). To use the Declaratory Judgments Act, a highly

general law, to broaden the scope of Wis. Stat. § 767.313, a

highly specific one, as the majority does, is to directly

contradict a well-established rule of statutory interpretation.

¶108 The second canon cuts against the majority's holding

even more forcefully. In Wis. Stat. § 767.313(2) the
legislature unequivocally expressed its intention to prohibit

annulments "after the death of a party to the marriage." The

majority honors these words in the most superficial sense

possible, while completely undermining them in every practical

respect. Under the majority's decision, a party seeking to

invalidate a marriage can accomplish the exact same result as an

annulment if she styles her action as one for a declaratory

judgment rather than one for annulment. As a result, the

carefully chosen language of the legislature is stripped of all

6
 No. 2011AP1176 & 2011AP1177.mjg

force on the basis of a few strategically placed words in a

caption, a consequence we have heretofore been loath to

sanction. See, e.g., State v. Petty, 201 Wis. 2d 337, 355, 548

N.W.2d 817 (1996) (reiterating that the court endeavors "to give

effect to every word so as not to render any part of the statute

superfluous.") (internal quotation marks and citation omitted).

¶109 Tellingly, the majority's device for invalidating

marriages exists, by its own account, only to nullify marriages

after death. It professes to preserve the common-law rule that

"[w]hen the parties to a marriage are alive, the appropriate

remedy for voiding a marriage is annulment" whereas "when one of

the parties died . . . a declaration that a marriage was void

was the proper remedy." Majority op., ¶37 (footnote omitted).

To translate, the courts utilize the "declaration of voidness"

specifically and exclusively so as to eviscerate the

legislature's deadline for invalidating marriages. Though it

should not be necessary, I feel compelled to note that on non-

constitutional matters the legislature can overrule the courts,

not vice-versa. See, e.g., Challoner v. Pennings, 6

Wis. 2d 254, 257, 94 N.W.2d 654 (1959) (recognizing that the

legislature "may by amending a statute nullify a supreme court

decision . . . .") (citation and internal quotation marks

omitted).

D. THE COMMON LAW DOES NOT SUPPORT THE ASSERTED POWER

¶110 To bolster its infirm statutory argument, the majority

seeks refuge in the common law. See majority op., ¶¶37-60.

There are a number of fatal flaws with its approach. Starting

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 No. 2011AP1176 & 2011AP1177.mjg

with the threshold question, it is not clear, even in theory,

how the common law can work in tandem with the other elements of

the majority's reasoning. After all, everything else in the

case is, by the majority's own lights, statutory: marriage

itself is statutory, id., ¶30, the factors rendering marriages

void are statutory, id., ¶33, annulment is statutory, id., ¶35,

and the Declaratory Judgments Act is statutory. Id., ¶66.

Apparently we are meant to believe that in this field of law,

entirely occupied by statute, the "voiding" of marriages somehow

snuck in from the common law, even though, as explained above,

that power flies in the face of the governing statutory

provisions. It is a leap of faith a little too far.

¶111 At any rate, the supposed common-law doctrine upon

which the majority is premised simply does not exist. From

Wisconsin's earliest years as a state, its courts3 have been

relentlessly imprecise on the matter of whether annulment is the

sole avenue for questioning a marriage or simply one option

amongst others. Some cases took the former position. See,

e.g., Falk v. Falk, 158 Wis. 2d 184, 189, 462 N.W.2d 547 (Ct.

App. 1990) ("Annulment is the proper procedure for setting aside

both void and voidable marriages.") (citations omitted). Others

the opposite. See, e.g., Ellis v. Estate of Toutant, 2001 WI

App 181, ¶¶15-17, 247 Wis. 2d 400, 633 N.W.2d 692 (permitting

3
Unlike the majority, I do not find authorities concerning
other jurisdictions relevant to the analysis. On the contrary,
as this discussion makes clear, the legislative and judicial
developments that resolve the appeal are highly specific and
unique to our state.

8
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trial courts to invalidate marriages pursuant to the Declaratory

Judgments Act). Still others appeared to take both positions at

once. See, e.g., Williams v. Williams, 63 Wis. 58, 69, 75, 23

N.W. 110 (1885) (indicating at one point that when a party

desires to invalidate a marriage "the action should be

to . . . annul" the union, while indicating elsewhere that a

void marriage may be called into question "in any proceeding in

any court between any parties . . . ."). Yet another group of

cases employed language conflating annulment with a judicial

declaration of invalidity, making it difficult to ascertain

whether there was even a difference between the two. See, e.g.,

Lyannes v. Lyannes, 171 Wis. 381, 388, 177 N.W. 683 (1920)

(discussing the power of a circuit court "to annul and declare

as void ab initio a marriage . . . .") (emphasis added).

¶112 The variation in language is not surprising when one

considers how closely related and commonly used these different

words are in judicial parlance. A court could not be reasonably

expected to refrain from using a word like "declare" or "void"
while discussing annulment when such terms were perfectly

accurate in context. See, e.g., Falk, 158 Wis. 2d at 191

(remarking on a marriage that was "void as a result of the

annulment . . . ."). Moreover, there was no decision clearly

finding an independent power to declare a marriage void outside

of annulment until quite recently, see ¶¶116-17 infra, so the

courts can hardly be faulted for inadvertently using language

that later gave birth to a distinction they had no good reason

to anticipate.

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¶113 It is also important to remember, though the majority

would have you forget, that this ambiguity was largely

linguistic, not legal. Whatever phraseology courts may have

adopted, inexact though it may have been, their holdings were

consistent. As a long and soundly-reasoned chain of cases

explains, a marriage can be lawfully undone only through one of

two statutory vehicles: divorce or annulment. Wheeler v.

Wheeler, 76 Wis. 631, 633, 45 N.W. 531 (1890) ("[W]here the

marriage is valid, the judgment is . . . for a divorce; but

where the marriage is void, the judgment is to annul it.").

Judges enjoy no equitable (or "declaratory," to use the

majority's nomenclature) power to act outside those well-paved

avenues. Kuehne v. Kuehne, 185 Wis. 195, 196, 201 N.W. 506

(1924) ("[T]he jurisdiction of a court to annul a marriage is

statutory, and . . . such a judgment may be entered only for the

reasons authorized by statute.") (citation omitted). When the

legislature saw fit to end that avenue at death, the courts were

thenceforth duty-bound to comply. McCabe, 197 Wis. 2d at 713
n.3 ("Although 'void,'" a marriage contracted in violation of

the statutes "governs legal relations unless it is

annulled . . . . This may not be done after one of the parties

to the marriage dies.") (citations omitted).

¶114 In short, there is no case law establishing a

mechanism for voiding a marriage after death other than

annulment. Quite to the contrary, the better and clearer case

law has always held that courts could use annulment and

annulment alone to invalidate marriages, and that they were

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constrained to follow the procedures constructed by the

legislature when they did so. Viewing the cases in the light

most charitable to the majority, it has at best a smattering of

inconsistent language here and there, some intimating the

existence of an independent mechanism, some intimating its

nonexistence, some intimating both simultaneously, and some

collapsing annulment into "voiding." To glean from this

discordant hodgepodge an unambiguous statement of judicial power

is, to put it mildly, a stretch.

¶115 In fact, a close examination of the majority opinion

reveals some evasiveness on this point. The relevant section is

given the definitive heading, "Courts Have the Power to Declare

a Marriage Void After the Death of One of the Parties to the

Marriage." In the same vein, the body of the section begins

with the following overview:

When the parties to a marriage are alive, the
appropriate remedy for voiding a marriage is
annulment. However, at common law, when one of the
parties died, such that any impediment to a valid
marriage was no longer capable of being corrected, a
declaration that a marriage was void was the proper
remedy.
Majority op., ¶37 (footnote omitted). With one arguable
exception, discussed in a moment, the cases cited in the

following section cannot fairly be characterized as standing for
such a proposition, and the majority, to its credit, does not

even attempt to make the case that they do. The teaching that

the majority actually, and accurately, draws from the cases is

merely that Wisconsin courts historically allowed for the

posthumous invalidation of marriage, not that such invalidations
11
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could be obtained through a "declaration of voidness." See id.,

¶48 ("[T]he Williams court concluded that a void marriage,

whatever the mechanism or process for challenging the validity

of the marriage, may be challenged in the lifetime or after the

death of the marriage parties . . . .) (emphasis altered); id.,

¶54 ("[T]he Lyannes court continued to recognize the ability of

a court to invalidate a marriage after death.") (emphasis added)

(footnote omitted); id., ¶57 ("According to the" court in

Davidson v. Davidson, 35 Wis. 2d 401, 151 N.W.2d 53 (1967), "the

issue of whether to allow the annulment action to continue

depended upon whether the marriage was void or

voidable . . . .").

¶116 It is quite true that these and other cases recognized

that a party could challenge a marriage after one of the spouses

passed away, and quite beside the point. Until 1977, there was,

with one exception,4 no prohibition on annulling a marriage when

one of the partners in the marriage was deceased. It therefore

hardly comes as a surprise that courts allowed for such
annulments. That in no way implies the existence of an

independent type of challenge, i.e., the so-called "declaration

of voidness."

¶117 The only case that holds to the contrary is Toutant,

which justifiably receives most of the majority's attention.

See majority op., ¶¶37-42, 65. In that case, handed down in

2001, the court of appeals granted, for the first time in

4
See Wis. Stat. ch. 109, § 2351(2) (1909) (providing that
an action to annul a marriage on the grounds that the spouses
were cousins could not be brought after death).

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 No. 2011AP1176 & 2011AP1177.mjg

Wisconsin history, a power to circuit courts to "declare"

marriages "void" under the Declaratory Judgments Act. But

Toutant cannot support the majority's "common-law" rule either,

for two reasons: 1) it was not a common-law decision and 2) its

reasoning is obsolete. The first point is self-evidently true

because Toutant itself situated the power to "declare voidness"

in the Declaratory Judgments Act, a statute, not in the common

law. 247 Wis. 2d 400, ¶22.

¶118 As for the second point, one need only take a moment

to consider Toutant's own succinct articulation of its

reasoning:

Wisconsin Stat. § 767.03 states, "No marriage may be
annulled or held void except pursuant to judicial
proceedings. No marriage may be annulled after the
death of either party to the marriage." While the
first sentence expressly prohibits both the annulment
or voiding of a marriage except pursuant to court
proceedings, the second sentence pointedly prohibits
only annulment after the death of either spouse.
Thus, a marriage can be declared null and void after
the death of a spouse. All arguments concerning
annulment are therefore immaterial.
Id., ¶16 (emphasis added). In other words, Toutant

explicitly relied upon the "or held void" language that the

legislature subsequently excised. The majority deems the
removal of that language a routine, housekeeping clarification,

noting that the drafters declined to announce that they were
responding to Toutant. Majority op., ¶76. It makes no

difference whether they were or not. What matters is that the
Toutant court certainly ascribed meaning to the language, and

undoubtedly would not have ruled as it did in the absence of

those three now-erased words. Consequently, the only precedent
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even remotely supportive of the majority's thesis is, in light

of the rationale underlying that precedent, outdated.

E. EVEN IF THE COMMON LAW SUPPORTED THE ASSERTED POWER, IT

WAS ABROGATED BY THE LEGISLATURE

¶119 Granting arguendo the existence of this nonexistent

common-law doctrine, there remains the intractable problem of

the 2005 revisions. The court writes off those revisions as

insufficiently clear and unambiguous to displace the common law.

Majority op., ¶77. To the contrary, I do not see how the

legislature could have been clearer or less ambiguous. The "or

held void" language was there, and then it was gone. And it is

entirely absent from the rest of the marriage statutes,5

including, most conspicuously, Wis. Stat. § 767.001, which lists

"actions affecting the family" and notably omits any mention of

"holding void," "declaring void," or the like. If such decisive

action cannot abrogate the common law, what can? Simply and

plainly put, when the legislature removed the phrase "or held

5
Wisconsin Stat. § 766.01(7) defines "dissolution" with
reference to "a decree of dissolution, divorce, annulment or
declaration of invalidity . . . ." (Emphasis added.) However,
it also notes that "[t]he term does not include a decree
resulting from an action available under ch. 767 which is not an
annulment, a divorce or a legal separation." § 766.01(7).
Because the majority rightly recognizes that a "declaration of
voidness" is not available under the annulment statute, this
definitional provision does not suggest that Wisconsin law
allows for any "declaration of invalidity" outside of the
annulment statute. Likewise, Wis. Stat. § 767.803 makes passing
reference to "marriages declared void" but there is no evidence
that it means anything other than "annulled marriages," which is
precisely how it has been interpreted. Rascop v. Rascop, 274
Wis. 254, 79 N.W.2d 828 (1956). These provisions have no
bearing on the case.

14
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void" from the statutes, whatever right an individual might have

had to invalidate a marriage outside of annulment was removed

with it.

¶120 Interestingly, as an example of clear and unambiguous

abrogation, the majority points to the legislature's prohibition

of posthumous annulments on consanguinity grounds. Majority

op., ¶54 n.17. I could not agree more. But if a ban on

posthumous annulments in one narrow, confined set of

circumstances is clear and unambiguous, why is the legislature's

1977 ban on all posthumous annulments not as well?

F. POLICY CONSIDERATIONS DO NOT SUPPORT THE ASSERTED POWER

¶121 The majority concludes with a recitation of the policy

goals advanced by its rule. Majority op., ¶¶78-80. Now, we are

assured, "an incompetent decedent's estate or an aggrieved

party" will not be "simply out of luck" and "a court's power to

address fraud, mistake, and other exigencies in a disputed

marriage" will be preserved. Id., ¶79-80. Valid

considerations, to be sure. As is so often the case, however,
there are equally valid considerations on the other side of the

equation. Just as the limitation embodied in Wis. Stat.

§ 767.313, if we faithfully enforced it, would unfairly

disadvantage some individuals, the limitless access to

declaratory judgments made possible by the majority will

unfairly disadvantage others.

¶122 Consider the case of a fully competent wife who

marries a fully competent husband. The husband's relatives want

nothing to do with him until he grows ill, at which point they

15
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manage to obtain a questionable medical opinion that he was

incompetent when he signed the wedding certificate. Upon the

husband's death, the relatives go to court, seeking to nullify

the marriage and inherit the assets that would otherwise pass to

the wife. Though the marriage "will be presumed valid,"

majority op., ¶81, the unscrupulous relatives have the benefit

of documentary medical evidence, and the innocent wife may have

only her own, self-interested (albeit truthful) word. Is such a

scenario more inequitable than the hypotheticals feared by the

majority?

¶123 None of which is to say that this describes McLeod's

situation. Nor is it to say that the worries on one side of the

ledger are more compelling than those on the other. It is only

to show that the policy choice here is a difficult one, with

powerful competing interests at stake. In forbidding posthumous

annulments, the legislature made that difficult choice. It is

not for us to second-guess its judgment. See, e.g., Progressive

N. Ins. Co. v. Romanshek, 2005 WI 67, ¶60, 281 Wis. 2d 300, 697
N.W.2d 417 ("When acting within constitutional limitations, the

legislature settles and declares the public policy of a state,

and not the court.") (internal quotation marks and citation

omitted).

¶124 Like most mythical creatures, the power to "declare a

marriage void" is neither fish nor fowl, neither statutory, nor

judge-made, nor a legitimate policy decision made by the

appropriate branch of government. It may have roamed the earth

once, but if so it has long since gone extinct.

16
 No. 2011AP1176 & 2011AP1177.mjg

II. CONCLUSION

¶125 The legislature has not been blameless in generating

the confusion that has led to the present state of affairs. At

the very least, it could have made plain its intention in

removing the "or held void" language in 2005. Presumably it

will be aware of the court's decision, and hopefully it will

take the opportunity to lay to rest, once and for all, the

persistent uncertainty that has plagued this important issue for

too long.

¶126 When the legislature does revisit the question, it

might keep in mind the worryingly extreme consequences of its

current all-or-nothing approach. Under the majority's misguided

reading of the law, as noted, a marriage can apparently be

challenged at any time after the death of a party, no matter the

circumstances or the evidentiary obstacles. Under the correct

reading of the law, as set forth here, equally disturbing

situations may arise. A marriage between, say, a minor and an

adult, would remain valid after the death of the adult, even if

uncontested documentation established the voidness. Cf. McCabe,

197 Wis. 2d at 713 n.3 ("Although 'void,'" a marriage contracted

in violation of the statutes "governs legal relations unless it

is annulled . . . . This may not be done after one of the

parties to the marriage dies.") (citations omitted). This is so

because annulment is the only means to invalidate a marriage

that is either void or voidable. Falk, 158 Wis. 2d at 189. The

law has not drawn any further distinctions within the void

category regarding marriages in which there is incontrovertible

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evidence, like a birth certificate in the preceding example,

obviating the need for any further fact-finding. It may make

good sense, as a policy matter, for the legislature to allow

courts to invalidate such marriages.

¶127 In the meantime, I would hold, for the reasons stated,

that the circuit court properly declined to exercise a power it

did not possess, and would therefore affirm its decision.

Because the majority instead elects to give a longstanding

misunderstanding the force of law, I respectfully dissent.

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1