ABA Journal


Family Law

Brain-injured man can’t marry, judge rules

Oct 7, 2013, 10:45 am CDT


Yet another inflamatory headline on a story that is otherwise not newsworthy. The headline should read "Capacity to consent required to marry in Illinois".

By W.R.T. on 2013 10 07, 1:01 pm CDT

WRT - agreed. It's sad for the girlfriend, but that's part of life. I give her full props for being loving and devoted, but you can't marry someone without consent. And a person who is in a vegetative state can't consent.

By RecentGrad on 2013 10 07, 3:00 pm CDT

Another good reason why relationships without commitment do not profit!

By Noncommital on 2013 10 07, 4:09 pm CDT

I am the attorney on this matter, and just to clarify, our contention was that a Guardian, under the Probate Act of Illinois, could consent on behalf of the ward to a marriage. The Judge agreed with that and ordered a license be issued.

The Clerk did not issue the license, necessitating a mandamus action. In that mandamus case the Judge ruled that the license could not be issued because the Marriage and Dissolution Act trumped the Probate Act.

So it is a bit more than just consent, it's about whether the power of a Guardian can cover marriage requests as well as all the other stuff a Guardian can do, like divorces, adoptions etc.

By Nate Reyes on 2013 10 07, 4:10 pm CDT

Hi Nate - thanks for clarifying. Your legal position re: the guardian makes a LOT more consent, and is a much more interesting issue. States vary on whether a guardian can consent, correct?

By RecentGrad on 2013 10 07, 4:19 pm CDT

Makes a lot more "sense" not a lot more "consent." Need a few more words in there - "makes a LOT more sense than arguing consent."

By RecentGrad on 2013 10 07, 4:19 pm CDT

An issue that came up during oral argument was the dearth of authority on the direct issue regarding marriage, but that the overall trend seemed to be that the authority of Guardians was ever broadening. Here in Illinois, the Supreme Court has ruled that the authority of a Guardian is not limited to the explicit language in the statute, and that it is to be interpreted broadly as to effectuating the intent of the ward. The Court has used that to apply the Guardianship Act to adoptions, divorces, end of life care, etc

With language that broad we figured a marriage should fit right in under these specific facts.

By Nate Reyes on 2013 10 07, 4:23 pm CDT

I don't practice probate so I'm not sure how it works. But it seems to me there's a big difference between a guardian having authority to act on behalf of the ward in things that do not involve the interests of the guardian and those that benefit the guardian directly. I can see how a guardian might step in to settle a divorce from another person but not a divorce from the guardian herself. With marriage it would be the same. How can the guardian act both in her own interests, wanting to marry him because it benefits her, and in his interests consenting on his behalf to marry her?

Clearly there needs to be protection against allowing guardians to have such broad powers that no distinction is made regarding situations that involve the guardian as a party to the transaction.

By Santana on 2013 10 07, 5:12 pm CDT

And yes the headline makes no sense. The judge did not rule brain injured man cannot marry. Judge ruled brain injured man lacking capacity for consent cannot marry without consent. Plenty of brain injured people marry all the time. I know, they come to me for divorce.

By Santana on 2013 10 07, 5:15 pm CDT

The Court had your same concern in mind Santana and appointed a Guardian ad Litem and a separate Special Limited Guardian to represent the ward for this specific matter. All concurred that a marriage would effectuate his intent and was in his best interests.

By Nate Reyes on 2013 10 07, 5:20 pm CDT

@10, Well that's interesting then because that addresses the problem.

By Santana on 2013 10 07, 8:15 pm CDT

I'd heard of stories before where Guardians went to court to STOP a ward from marrying (often I see stories with someone who has a condition such as down syndrome) and the court then determines whether the ward has the capacity to understand what marriage is. I'd never heard of a case like this before where the Guardian was actively seeking to have a marriage allowed. Nate - did any of those cases figure into the oral arguments and analysis?

By RecentGrad on 2013 10 09, 6:27 pm CDT

*Purifoy says Morris had proposed, though they hadn’t married. They owned a home and had combined their financial assets, however, and they have a child together. Each also has children from prior relationships.*

That's kind of the risk you take when co-mingling assets and families outside the bounds of marriage or other legally available contractual protections.

By Esq. on 2013 10 10, 2:50 am CDT

@12, Those cases did not figure in because this wasn't a case of an individual with restricted or limited capacity who was otherwise saying yes to a marriage contract. In that situation it would be the ward initiating the marriage contract, with the Guardian either acquiescing or objecting.

In our situation it was the Guardian both initiating and acquiescing to the marriage, which was where the legal question originated. However, to be clear, the fact that the ward had proposed marriage prior to his injury was a key factor.

By Nate Reyes on 2013 10 10, 1:35 pm CDT

So, he's OK to be a Managing Partner at a large firm, or defense counsel in a Texas capital case, but he can't marry. I actually think you could find "common law" precedent from Merrye Olde that says a guardian *can* consent for a ward (because they used to do it all the time, even where it was actually contrary to the informed and conscious wishes of the ward).

By B. McLeod on 2013 10 11, 7:03 am CDT

Some years back, there used to be a somewhat irreverent SCOTUS joke in which the justices were out for dinner, and Sandra Day O'Connor ordered her entree, beef with garlic sauce, after which, the waiter inquires, "and the vegetables?" Then Justice O'Connor says, "Oh, they'll order for themselves."

By B. McLeod on 2013 10 11, 7:11 am CDT

Perfect example of why government should have no involvement in marriage, period.

By exradardan on 2013 10 11, 12:45 pm CDT

Persons lacking mental capacity can't marry, but they sure can make babies, and lots of them.

By beentheredonethat on 2013 10 11, 1:37 pm CDT

If he wanted to marry her so badly, why didn't he do so during the first 35 they were dating? It must take a whole hour or so to get down to the courthouse and make it official.

By DirkJohanson on 2013 10 11, 2:05 pm CDT

Far too many men have been accused of being brain dead following marriage-perhaps this early intervention is wise!

By greyghost on 2013 10 11, 3:13 pm CDT

Santana makes sense. It's the capacity that's the issue.
(I would like to know how those brain-injured people in a vegetative state on life-support manage to "come to" his office for divorces, though. Are they savvy about negotiating on legal fees?)

Tough cases make bad law. This one - if any judge "fixes things" to "do justice" on re-hearing or appeal - will make bad law.

By Avon on 2013 10 12, 5:26 am CDT

Just curious - is there a common law marriage statute in Illinois. If so, that would certainly change the outcome as to inheritance.

By Lucreita D. Becude, Esq. on 2013 10 12, 4:06 pm CDT


A "common law statute" is an oxymoron. Common law rulings recognize established rights and re-affirm longtime traditions, but any statute the legislative branch might pass would either amend or replace the common law.

A couple of states allow common-law marriages to be created within their borders, but Illinois is not one of them. Illinois would recognize a common-law marriage from elsewhere, but this couple didn't create one in a common-law state by considering themselves married and presenting themselves publicly as married. Still, I can't imagine anyone in a vegetative state considering himself to actually be married and holding himself out as such, as opposed to merely being in a committed permanent relationship. So even if he'd been living in a common law marriage state, they'd be out of luck now.

Maybe you're thinking of community-property statutes. But they only apply upon divorcing.
This lady seems not to care about the inheritance right now; she just wants to marry whom she loves. (The media these days are full of reports of people who are saying that. Most of them will just have to wait til the law changes, right?)

But if inheritance is an issue, Esq #13 is right - if you didn't marry, you're out of luck. She could get back whatever property she put into the relationship, including her fair share of the house, if she can prove she contributed it. But no inheritance, unless he wrote a Will giving it to her. (Lawyers are always telling everyone to write a Will, and not just to charge a fee, either. You really never know if and when it'll be needed.)

I don't know why the ABAJournal reports that "A previous ruling allowed Purifoy to be considered an heir if Morris dies, Reyes told the Star." I assume the ABAJournal is just plain wrong.
The Star article actually says that the same probate judge had previously ordered that they be issued a marriage license, probably because Illinois Probate law would allow the guardian to marry the invalid. Maybe the judge even said it would be done to enable a spousal inheritance. But the local clerk refused to issue a license, and the judge then realized that the Marriage law would disallow the man's ability to marry. The judge is correct. Lisa gets no husband and no inheritance.

This kind of tragedy happened many times every day here in NYC in the 1980s. People dropped like flies of AIDS, and the bereft partners who had devoted their lives, and years of care, to them usually ended up with nothing. Often they were even excluded not just from inheritance but from the funerals. Sometimes, when a dead person's family blames the partner for the death, it still happens.

With no Will and no marriage, this will happen again and again.

By Avon on 2013 10 13, 12:09 am CDT

I have read most of the ABA Journal articles over the past two years and except for a few comments aimed at humor, I believe this is one of the most insightful and professionally thought-out discussions yet. Thank you Nate Reyes for sharing the details of this case and best wishes to your client.

By Terry Charles on 2013 10 14, 9:47 pm CDT

A "common law marriage statute" is not an "oxymoron."

A number of states have passed statutes to restrict or condition common law marriage, to curtail perceived abuses (e.g., raising of the alleged status by defendants accused of statutory rape, because the age of "capacity" for marriage at common law was generally lower than the age of "consent" under statutory rape laws). A number of these statutes bar the marriage or require parental consent or court approval if one of the participants is below a certain age.

At common law in our country, "capacity" was a necessary requisite for common law marriage, but of course, in Merrye Olde, those marriages with which the courts concerned themselves were generally among persons (and families) of substance. Speaking from historical perspective, it seems to me unlikely that a marriage arranged by a guardian for a ward would have been set aside on the "capacity" issue in Merrye Olde. It was a great (perhaps the greatest) concern in those days to perpetuate bloodline, and if that entailed arranged marriages of children or the feeble-minded, so be it. When the capacity issue involved an already existing marriage, there were remedies for that too, and the Anglican church is one such.

By B. McLeod on 2013 10 15, 6:12 am CDT

Would they qualify for a "civil union"? I have argued that if civil unions can be had for non-married same sex couples, then they should be allowed for non-married couples of the opposite sex too.

By Johnny E on 2013 10 15, 6:36 pm CDT

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