![handle is hein.journals/tlro88 and id is 1 raw text is:
THE MARRIAGE MOMENT:
WE INHERIT NOTHING TRULY, BUT WHAT OUR
ACTIONS MAKE US WORTHY OF
Fredrick E. Vars*
In its landmark Obergefell v. Hodges2 decision, the United States Supreme Court
held that same-sex couples have the same right to marry as others.3 [M]arriage is
essential to our most profound hopes and aspirations, the Court declared.4 This is
certainly true for many people, but marriage is not an unmitigated good. Like all things,
it can be abused. As the right to marry expands, the potential for such abuse ought to be
narrowed.
In particular, suppose an elderly person is completely dependent upon a nurse.
The nurse pressures the patient into executing a will leaving everything to the nurse.
After the patient dies, the family challenges the will on undue influence grounds, and
likely wins.5 But suppose instead the nurse pressures the patient to marry. Marriage,
too, can be set aside on undue influence grounds, but in most jurisdictions not after a
spouse has died.6 The unscrupulous nurse keeps the ill-gotten spousal share.
Obergefell has increased the potential for this type of abuse. A recent Illinois case
illustrates.2 A same-sex partner allegedly exerted undue influence over several years to
become the sole beneficiary of William Drewry's trust.' Drewry's family's undue
Professor, University of Alabama School of Law. Yale (J.D.); Princeton (A.B.). Thanks to Alan Durham,
Heather Elliott, and Albert Lopez for comments on earlier drafts.
1. George Chapman, in THE NEW DICTIONARY OF THOUGHTS 23 (Tryon Edwards ed., 1957).
2. 135 S. Ct. 2584 (2015).
3. Obergefell, 135 S. Ct. at 2604.
4. Id. at 2594.
5. See, e.g., Puckettv. Krida, Nos. 21-170, 8287, 01-A-01-9403-CV-0010, 1995 WL 316263 (Tenn. Ct.
App. May 25, 1995). Some states have even enacted statutes creating a presumption of undue influence for
gifts to caretakers. Robert Barton, et al., Gifts to Caretakers: Acts of Gratitude or Disguised Malfeasance?
New StatutesMay Decidefor Us, PROB. & PROP., May-June 2015, at 22, 23.
The doctrine of undue influence in particular is not without critics. See, e.g., Carla Spivack, Why the
Testamentary Doctrine of Undue Influence Should Be Abolished, 58 U. KAN. L. REV. 245 (2010); Ray D.
Madoff, Unmasking Undue Influence, 81 MINN. L. REV. 571 (1997). Defending every variety of will contest is
obviously beyond the scope of this Essay. My argument is that the permissible grounds for challenging in
probate a will and a marriage should be nearly the same.
6. See Hoffman v. Kohns, 385 So. 2d 1064, 1069 (Fla. Dist. Ct. App. 1980) (holding that marriage
cannot be voided because of undue influence after the death ofa party); see also Rodenhiser v. Duenas, 818
N.W.2d 465, 471-73 (Mich. Ct. App. 2012) (noting that only a spouse while both spouses are alive can claim
fraud and duress in order to set aside a marriage); W. W. Allen, Annotation, Right to Attack Validity of
Marriage after Death ofParty Thereto, 47 A.L.R.2d 1393, 1407 (1956) (same). For a recent state survey, see
Robert W. Goldman, Post-Death Divorces, in SEVEN DEADLY CLAIMS, CW001 ALI-CLE 399 (Steven K.
Mignogna ed., 2014).
7. In re Estate ofDrewry, No. 1-12-0129, 2013 WL 6687255 (Ill. App. Ct. Dec. 17, 2013).
8. Id. at *1-2.
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