Can an individual under a guardianship marry?


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D. and
Beth L. Aarons, J.D., MSW

Can an individual under a guardianship marry? A prior column focused on some of the different life situations that translate into different definitions of legal intent in the application of certain actions. The understanding is that legal intent is defined differently in different situations and in different states. The question raised in this column regards a situation when a person, usually referred to in law as a "ward," who has a legal guardian, wants to get married or does get married.

Guardianships are established for different reasons and the individuals under guardianship or wards, have varied cognitive abilities. There is no blanket rule for all wards that allows or prohibits marriage. For each ward, the answer to this question depends on the reason for the guardianship, the extent of the guardianship and the particular individual's mental capacity. For purposes of this discussion, let's assume that the guardianships are of both the person and the property of the ward.

If the ward is subject to the guardianship merely because he or she is a minor, then the minor can petition the court for leave to marry. If the court allows the petition, the minor ward can legally marry despite being subject to the guardianship. This court procedure would apply the same way to any other minor wishing to marry who is not subject to a guardianship.

If the court grants the minor ward's petition, then once the ward marries, the guardian would no longer have guardianship of the ward's person, (i.e. custody of the ward or oversight of the ward's education). However, the guardian would still have guardianship over the minor ward's property, regardless of the marriage. It is possible that the ward or the ward's spouse could subsequently petition to have the guardianship terminated or ask the court to name the newly acquired spouse as the ward's guardian until the ward reaches the age of majority, but this would not happen automatically as an operation of law just because the marriage occurred.

If the minor ward had also petitioned the court for legal emancipation, then the guardianship could have been terminated altogether without having to wait until the age of majority and the emancipated minor might have been eligible to marry without leave of court.

If a guardianship was established because of the mental incapacity of the ward, then the question of whether the ward can enter into a marriage hinges on balancing of the ward's fundamental right to choose whether or not to marry, and the ward's mental capacity and ability to enter into a marriage contract.

Because each ward's mental abilities differ, each individual ward will have a different capacity to understand, contemplate and choose to marry. If the guardian believes the ward lacks the mental capacity to enter into a marriage, the guardian may contest the marriage from taking place. In the event the marriage has already occurred without the guardian's knowledge, the guardian may petition the court to have it invalidated or nullified, sometimes known as "annulling" the marriage. It would then be up to the court to assess the ward's mental capacity to enter into a marriage contract.

If the court determines that the ward does have the requisite mental capacity and the marriage is valid, then the court could decide if the guardianship would be terminated in part or in full.

It appears, both in law and in practice, that the threshold for demonstrating the requisite mental capacity to marry is not unconquerable. At the time the marriage takes place, the intended spouses need only show intent to marry each other and an understanding of the consequences of the marriage, (i.e. the rights, responsibilities, and obligations of being married). Any lack of mental capacity a ward might experience prior or subsequent to the time the marriage occurred would not by itself be sufficient cause to invalidate the marriage.

If the guardianship only covers the property of the ward and the ward marries, the guardianship would likely remain in place until subsequent order of the court, regardless of marriage. It is unlikely a guardian of only the property of a ward would have standing to contest the ward's marriage.

Possible concerns could be that the spouse married the ward in order to get access to or control of, the ward's assets. This question assumes that the guardian is working in the ward's best interests and that the spouse is not doing so. In these matters, both the guardian and the spouse will claim to be proceeding in the best interests of the ward. In the event that the guardian and the ward's spouse dispute the ward's mental capacity for the marriage, the matter can be presented before a court of competent jurisdiction for judgment. Absent fraud or duress, however, if the ward possesses the mental capacity to enter into a marriage contract, marrying would remain the right and choice of the ward.

All of the above assumes that there is not a prenuptial agreement, for which both parties have the mental capacity to contract. This agreement could privately resolve the issues.

As in all such matters, it is important that all parties seek the advice of an attorney as the issue may be complex and the answers may be different according to the situation and/or state.

Can an individual under a guardianship marry? (April 2009 Issue)

By Edward Stern, J.D. and Beth L. Aarons, J.D., MSW

Can an individual under a guardianship marry?
(April 2009 Issue)

By Edward Stern, J.D. and
Beth L. Aarons, J.D., MSW