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As we all know, marriage is between two people.  Is, and always has been, right?  Marriage has evolved and expanded over time, but the law has never entertained the concept that marriage can involve more than two people.  Clearly, there can be no legal recognition of the rights of three or more spouses.

Actually, this is not at all correct.  Even in Louisiana, there are rules in place to define the rights of people who are, for want of a less loaded term, bigamists.  There always have been, because there have always been bigamists.  Sometimes, the common spouse honestly thought he got divorced, but because of an unknown technical error he was really still married.  Other times, the common spouse secretly knew he was still married, but his new wife didn’t know until he died and the first spouse showed up with her hand out.  When a person gets married, and then gets married again without the prior marriage being legally dissolved, whatever the reason for it, the courts are obligated to suss out the respective property rights for everyone involved.  So there must be laws in place to provide the courts guidance.  

When you think about it that way, it becomes obvious this can’t be a new development.  In fact, it is older than Louisiana itself.  It is as old as the very concept of bigamy, because it is the inevitable result of bigamy.

Like many of her laws, Louisiana’s current rules for allocating those rights are sort of a mix of Spanish and French traditions that predate Louisiana as a state. I won’t bore you with the detailed history, but it suffices to say that where Spanish law sought to “punish” the common spouse who knows he is a bigamist (what the scholarship calls “bad faith”), the French tradition does not.  Again, this may seem odd, until you realize that the question only really comes up when the common spouse has died.  So we are not really talking about punishing a bigamist, but about disinheriting his kids.  The kids clearly had no choice in the matter, and they do not deserve to be “punished” for the innocent mistakes or even the bad choices of their parents.  

The Louisiana Civil Code tweaked this rule as recently as 2019.  Currently our Code leans mainly toward the French tradition of eliminating “good faith” as a requirement for the second spouse to have civil effects of marriage, as long as she does not know about the impediment to her marriage at the outset.  The idea, I suppose, is that even if the second spouse finds out after the fact that her marriage is invalid, she is powerless to do anything about it, and so she shouldn’t be punished for it.  That’s a good thing because at least in Louisiana, the second spouse often gets a pretty raw deal in the end.  

Which brings us to the curious case of Succession of Burns, which the Louisiana Second Circuit decided this past November.

Now as any fan of “The Simpsons” knows, Mr. Burns was a very wealthy man.  Unlike his Simpsons counterpart, though, he didn’t own a nuclear power plant, and no one really knew exactly how he managed to get quite as rich as he did.  

Also, he did not live in Springfield.  He lived in Homer, LA (yes, really).  

Before he died, Mr. Burns acquired quite a bit of property in and around Homer, and also a couple of wives.  His relationship with his first wife ended around 1966.  Then, he married his second wife in 1970, but without getting divorced from the first wife.  Apparently this was a “good faith” mistake that arose from forged divorce papers that no one knew about until after Mr. Burns died.  He had had children with both wives, and he lived happily with his second wife for the next 45 years until he died in 2015.

As a young man, Mr. Burns was flat broke for the five years or so he was with Mrs. Burns #1. He accumulated his pretty sizable fortune entirely during his second marriage to Mrs. Burns #2.  Louisiana being a community property state, had things gone right, Mrs. Burns #2 would have had rights to the entire fortune to the exclusion of Mrs. Burns #1; subject only to rights of Mr. Burns’ children.

But of course, things did not go right.  When Mr. Burns died and everyone realized he was never technically divorced, Mrs. Burns #1 came looking for her share of his accumulated wealth, and all hell broke loose.

Let’s take a moment to put ourselves in the shoes of Mrs. Burns #2.  You are elderly, and your children are grown.  You lived your entire adult life and raised a family with your husband, who died and left you a fortune.  The father of your children and your partner of the past forty-five years is forever gone, but at least you can look forward to a quiet and comfortable old age and enjoy the memories of a happy marriage.  

Then, due to circumstances previously unknown to you and entirely beyond your control –  a simple, technical mistake someone made fifty years ago – you find out you were never really married at all.  The woman your husband hasn’t seen in over fifty years is actually his widow; not you.  And now, she is claiming it all belongs to her by right; a net estate worth well over a million dollars.  Even though she had absolutely no role in earning a dime of it, she was legally his wife, and now she is here to take everything away from you.  

I imagine the sensation is something like free falling.

This is a dilemma that pretty much everyone involved is blameless in creating. There is no doubt that the only legally valid marriage is the first one.  As unfairly as Mrs. Burns #2 may feel treated, Mrs. Burns #1 is the lawful spouse and has a claim that must be considered.  A single rule must be fashioned.  The seemingly fair result, at least in this case, is that the first wife should get what she contributed: nothing.  But that only seems fair because this is an extreme example, and using extreme examples to fashion a rule does a disservice to most cases which are not so cut and dried.  What if the situation was reversed, with the first wife married for decades, and the second “wife” only a few years or months?  Should the faithful and true first wife be left with nothing to show for her decades of marriage in favor of her husband’s fling at the end?

Well, in the end Mrs. Burns #2 was not exactly thrown to the hounds, but I doubt she was happy.  Instead of controlling her former husband’s entire estate, she was relegated to walking away with ¼ of it.  Another ¼, an unearned windfall of several hundred thousand dollars, went to Mrs. Burns #1.  The other half went to Mr. Burns’ kids.  Inequitable, perhaps.  Not at all fair.  But thems, as they say, is the rules.  In the Court’s opinion, this is the result dictated by the Civil Code, and that is that.

Scholarship has been poking around this question for decades, and Louisiana’s rule is deeply, deeply unpopular with family law scholars.  The court in Burns actually does something extraordinary and goes out of its way to chastise, even kind of belittle, the outcry from scholars about Louisiana’s rule.  If you read between the lines, it is pretty evident that the Louisiana Family Law Commission and professors from various law schools around the state latched on to this case as an example of how nuts it is to give a windfall to someone like Mrs. Burns #1, and they used the outlandish facts of the case in an attempt to steer the court toward a fairer interpretation of the rule.  Many legal scholars want the law to adopt what they call a “Putative Divorce”: ending the first marriage after-the-fact as a sort of equitable remedy that becomes effective when the second good faith but legally invalid marriage is contracted.  The Burns court gently rebuked these efforts, telling the scholars in effect that if they think this is a better idea, they can present it to the state legislature.

Now, the court’s hands were not as tied as they made it seem.  There is nothing in the Civil Code that dictates who gets what percentages.  The court simply followed the formula set forth in a couple of decades-old cases, but they certainly did not have to.  Courts are bound to follow the law, but they are not as bound to their own precedents as they are bound to clear pronouncements (or silence) from the legislature.  

If the court had wanted to refashion the existing precedent to reach a fairer result here, they could have.  My guess is that they chose not to because as I pointed out above, using an extreme set of facts to make a new rule usually makes bad law.  They probably just were not inclined to swing the pendulum so far in the other direction, and bind future courts to a rule that would do more harm than good to more people in the long run.

Are you married?  Are you sure?  Don’t take any chances with your future. Make an appointment with an experienced family law attorney today and find out what your rights are.

Additional reading: The Pitfalls of a Putative Marriage and the Call for a Putative Divorce (PDF)


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Greg Nichols

Author Greg Nichols

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