by Richard W. Millar, Jr.

Nancy Thomas was only gone for a week. Howard Thomas was her father and she was his primary caretaker. He suffered from terminal cancer and Alzheimer’s disease. In February, 2001 she took a one week vacation, leaving him in the care of one Nidia Colon. It is probably fair to say that although Howard may not have remembered it, it was an eventful week for Ms. Colon who utilized that short time to, among other things, become the new Mrs. Howard Thomas.

Of course, neither Nancy or her brothers, who, without Ms. Colon’s matrimonial intervention, would have been Howard’s only heirs, were invited or even told about the ceremony which included a pastor, two witnesses, and the couple. They learned of it about a month later and were, I think it is safe to say, upset.

Ms. Colon, now Mrs. Thomas, “caused the ownership of an account at . . . Citibank worth $150,000 to be changed from Howard individually to Nidia and Howard jointly, and caused herself to be named as the sole beneficiary of Howard’s account with the . . . New York Teacher’s Retirement System . . . valued at $147,000.” She was as quick with a pen as she was with her heart.

Howard died in August, 2001. Court filings came three months later.

Christopher Campbell (one of Nancy’s two brothers) filed a petition to probate Howard’s will which divided his estate equally amongst the children. Nidia filed a right of election which I think is probate speak for “hey, I am the surviving spouse.” About the same time, Nancy and her two brothers filed an action to void the marriage and the subsequent asset transfers. The right of election issue was stayed pending the outcome of the “void the marriage” case.

The evidence of Howard’s condition at the time of the nuptials was what you might suspect. He was described as “paranoid, extremely forgetful and prone to temper outbursts,” “combative and aggressive” and “had to be restrained . . . [or] he would pull out his IV tubes . . .” He required constant attention or he would “wander off.” He vehemently denied the marriage asking, “are you crazy?” His doctor testified that he had “severe dementia” and that he should not be left alone, “even for a minute.” He was taking numerous prescribed medications including “psychotropic medication.” He was, in short, a less than ideal groom.

It was also claimed that a month before Howard’s death Nidia sold a portion of some property he owned for $90,000 depositing the proceeds in the newly minted joint account which later carried a balance of just 54 cents.

Nidia submitted affidavits from the pastor and the witnesses who averred that Howard “knew he was marrying Nidia Colon, “although the pastor later backed off saying that if he had known about Howard’s medical condition, he would not have performed the ceremony. Nidia also testified that she had known Howard since 1975 when he was a school principal and she was a school crossing guard and claimed that he had asked her to marry him at least four times; in 1979, in 1980, in 1981, and again in 2001. She claimed that she did not know he had transferred the Teacher’s Retirement Account until three months after his death and that he had done so without her knowledge or help. Unfortunately for Nidia it turned out that the change of beneficiary form was in her handwriting. Oh well, maybe her memory was no better than Howard’s.

Also Howard had kept his will in a safe in his home, but it went missing after he died and Nadia was unable to locate the will (which gave nothing to her). Talk about a search without incentive. Nonetheless, it was later produced by her attorney. I guess she forgot to look in his office.

Nidia did not fare well in the trial court and appealed, arguing that under the law she is considered a surviving spouse even if the marriage is subsequently annulled and is therefore entitled to an elective share of Howard’s estate. Nidia was not going down easily.

New York law provided that an action to annul the marriage of a mentally ill person can be brought by any relative who has an interest to avoid the marriage. So far so good. The court noted that “the most readily apparent interest of a relative of a deceased spouse is likely to have in avoiding a marriage is preventing the living spouse from sharing in the deceased spouse’s estate.” However, and there always seems to be a “however,” New York probate law stated that a surviving spouse has a right of election unless the judgment of nullity was in effect when Howard died. In this case, it was not until 2007—some five years after Howard’s death—that a court so declared, which meant that the law allowing family members to “obtain a post-death annulment [was] largely illusory.” So “technically” (to use the court’s word) Nidia would share in the estate.

Faced with the repugnant result of following the law, the court did what courts are wont to do in such circumstances: it turned to equity declaring that by her conduct she had forfeited her rights flowing from the marriage, including the right to a share of Howard’s estate. The court also grounded its decision in the rights of courts to prevent their processes from becoming tools in a “wrongful scheme.”

So over nine years after Nancy left for a week, Nidia finally lost.

“A high hope for a low heaven.”

(Act I Sc. I)

Mr. Millar is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.