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Can an Incapacitated Person Marry in the Orlando, Florida Area?

The right to marry is one of the basic civil rights of man. It is fundamental to our very existence and survival. The US Supreme Court stated that in Loving v. Virginia, 388 US 1, 12 (1967). At the same time, the court in an Incapacity hearing must protect the Ward from financial exploitation. A marriage is a contract that deals with a range of sometimes simple to very complex business transactions. The court must examine the inability of the Ward to understand what a marriage contract entails. Moreover, the court must look at whether an inheritance awarded to another person that is not the rightful spouse, child(ren) or heir of the Ward can lead to a detrimental outcome for the family. Further, the court is not to disturb the Ward’s estate planning.

Where the right to contract has been removed under Florida Statute 744.3215(2)(a), the Ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect.

Under Florida Statute Section 744.3215(2)(a), even when a guardianship court does not remove an incapacitated person’s right to marry, the right to marry becomes subject to court approval when his or her right to contact has been removed.

Any marriage entered into by the Ward whose right to contract has been removed without court approval is invalid; but Florida Statute Section 744.3215(2)(a) does not prevent the Ward or the intended spouse from seeking court approval after marrying in order to ratify the marriage.

The Florida Supreme Court discussed this very issue in Smith v. Smith, 224 So. 3d 740 (Supreme Court of Florida August 31, 2017). The issue before the court was:

WHERE THE FUNDAMENTAL RIGHT TO MARRY HAS NOT BEEN REMOVED FROM A WARD UNDER FLORIDA STATUTE SECTION 744.3215(2)(a), DOES THE STATUTE REQUIRE THE WARD TO OBTAIN APPROVAL FROM THE  COURT   PRIOR TO EXERCISING THE RIGHT TO MARRY, WITHOUT WHICH APPROVAL THE RIGHT TO MARRY, IS ABSOLUTELY VOID, OR DOES FAILURE RENDER THE MARRIAGE VOIDABLE, AS COURT APPROVAL COULD BE

 CONFERRED AFTER MARRIAGE?

The court held that when the right to contract has been removed under Florida Statute 744.3215(2)(a), the Ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect. 

The right to marry can be removed by the court but it cannot be delegated to a guardian. When the right to enter into a contract has been removed, the right to marry is subject to court approval. 

A guardianship court may remove an incapacitated person’s right to marry if there is clear and convincing evidence that that he or she is incapacitated with respect to that right. Even when a guardianship court does not remove the right to marry, an incapacitated person’s right to marry becomes subject to court approval when his or her right to contract has been removed. 

If you have more questions regarding a Guardianship Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. 

This article is for informational purposes only and does not form an attorney client privilege