4th DCA Emphasizes Statutory Language Distinction: A “Marriage” Is Not Subject To Court Approval, But The “Right To Marry” Is

Posted on March 16, 2016

In Smith v. Smith, — So.3d — (Fla. 4th DCA 2016), the Fourth DCA upheld the trial court in finding that if a person is deemed incapacitated and had his or her right to contract taken away, he or she has no right to marry unless the court has authorized such. The reason for this is that Section 744.3215(2)(a), Fla. Stat. does not state that a “marriage” is subject to court approval, but rather the “right to marry” is.

In the subject case, Glenda Martinez Smith (“Appellant”) appealed the finding of the trial court which found that her marriage to J. Alan Smith (“Ward”) was void due to Ward’s status as incompetent. Prior to the proceeding, Ward had been assigned a plenary guardian and his right to contract had been removed by the court, thereby making his right to marry subject to court approval. Subsequently, Appellant and Ward married without court approval and Ward’s independent counsel therefore sought to annul the marriage. The trial court properly found the marriage void and annulled the marriage

The Fourth DCA upheld the annulment on appeal, noting that Section 744.3215(2)(a), Fla. Stat. explicitly provides, that “rights that may be removed from a person by an order determining incapacity, but not delegated to a guardian, include: the right to marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.” The Court emphasized that Section 744.3215(2)(a), Fla. Stat. must be read according to its plain meaning. Thus, the fact that the statute does not state that “a marriage” is subject to court approval, but rather, it states that “the right to marry” is subject to court approval is an important distinction. Therefore, if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval. As the Ward did not have such court approval, the Court upheld the trial court’s finding that Appellant’s marriage with Ward was void (since a marriage entered into by a person with no right to marry, such as Ward, is legally void).

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

Blog Archive

Practice Areas

Probate Administration & Litigation

Wills & Trust Administration & Litigation

Guardianship Administration & Litigation

Commercial & Real Estate



Contact Us





SPAM validation

Serving clients in Boca Raton, Boynton Beach, Deerfield Beach, West Palm Beach and throughout the Tri-County Area of Palm Beach County, Broward County and Miami-Dade County.


12856 Whitehorn Way
Boynton Beach, Florida 33473-3313

Phone: (561) 614-2770
Click Here For Directions

Practice Areas

Wills & Trust
Commercial & Real Estate Litigation
Negotiation of Contracts

Quick Links

Attorney Profile
FAQ Videos