Nation - Kentucky Disputed deathbed marriage headed to court Daughters want second wife removed as administrator of estate

By Greg Kocher

Associated Press

BEATTYVILLE, Ky. (AP) -- "Till death do us part" came sooner rather than later in Denton Cooper's second marriage to Izetta Johnson.

Cooper, 59, had esophageal cancer and was lying on his deathbed on June 10, 2009, when he remarried Johnson, his second wife. A couple of hours after a preacher performed the ceremony, Cooper unable to speak because of the cancer died.

Cooper's three daughters by his first wife want a judge to declare the marriage to Johnson void and to remove her as administrator of his estate.

The daughters Crystal Mays, Shena Reece and Cassie Taulbee, all of Lee County argue that the marriage never took place because the formal requirements for a license and solemnization were not met.

Lee District Judge William "Bo" Leach denied the daughters' request earlier this year because he indicated that district courts do not have jurisdiction to determine the validity of a marriage.

Leach ruled "the district court must honor the purported marriage unless it is set aside in circuit court." So the case was appealed to Lee Circuit Judge Thomas P. Jones, who is scheduled to consider the matter during a July 7 motion hour.

Cooper and Johnson had been married years ago for about 10 years but divorced in 1995.

Sometime later, he and Johnson reconciled and at the time of his death had been living together for about 11 years in a home that belonged to Cooper before the reconciliation.

Hospice had come and gone on the day of the marriage ceremony and, by mid-afternoon, family members, friends and others gathered at Cooper's home to say goodbye to the Beattyville city employee as he lay in the living room.

In the early evening, a Lee County court clerk apparently brought a marriage license to the house, according to James T. Harris, the Lexington attorney for the three daughters.

Harris alleges in court documents that Johnson "placed a pen" in Cooper's hand, "and while gripping his hand caused a mark to be made on the form because the decedent was unable to sign anything. Some of the witnesses were led to believe that this form was related to health care."

A local preacher performed the ceremony in the presence of Cooper's brother and sister. "Many of those present were led to believe" that the preacher was "renewing vows" and "did not realize that a marriage was intended nor did they recognize the pretended ceremony as one of marriage," according to Harris.

Court documents say Cooper died of heart failure a couple of hours later, at 9:35 p.m. But Harris suggested in an interview that Cooper might have been dead when the ceremony took place. He wants to depose witnesses to learn who answered for the mute Cooper during the ceremony.

The next day, June 11, 2009, a marriage license was issued in the Lee County clerk's office. Cooper "did not personally appear in the clerk's office on June 10, 2009, and certainly could not have, by any action on his part, certify the information for such a license," Harris wrote.

In other words, "You can't get married before you get a marriage license," Harris said in the interview.

Johnson was appointed administratrix of Cooper's estate on July 14. Cooper left behind few possessions aside from a house, two trucks and furniture. Harris estimated the entire estate is worth less than $50,000.

Charnel Burton of Booneville, Johnson's attorney, argues in a motion to dismiss the case that the three daughters "were present at the time of the marriage on June 10, 2009, and were well aware of the decedent's capacity or alleged incapacity at the time that the marriage took place."

"At that time, no one raised any objection to the marriage," Burton writes.

The sisters said they arrived at the house as the preacher was saying a prayer. "We didn't even know they were married until we went to the funeral home the next day," Reece said in an interview last year.

Cooper's death certificate indicates his marital status at the time of death was "divorced."

A circuit court in Kentucky may declare a marriage invalid under certain circumstances, including when a person lacked mental capacity or was under the influence of alcohol or drugs, or when a person was "induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage."

Cooper was under the influence of narcotics and other medications, Harris argues.

Burton contends the appeal should be dismissed because it was filed after a required time limit. He said the daughters' appeal was filed "merely to harass and/or annoy" Johnson, who lives in the house she shared with Cooper. Johnson initially thought she might sell her interest in the house but changed her mind because she had lived there so long and considered it her home.

"She's very upset," Burton said. "She's known these girls for years and years. ... She's extremely upset by all this."

Harris said the case points to the need for a deathbed marriage statute in which a surviving spouse would receive little or nothing if the marriage lasts less than a certain time.

For example, the federal government requires nine months of valid marriage for a surviving spouse to receive Social Security benefits, according to an article in the Kentucky Law Journal. The publication noted that some states have similar rules. Minnesota law requires a public employee to be married for a year before certain survivor benefits will be paid.

Whatever the outcome of the Lee County case, Harris said, it is an unusual situation. He said a law journal and other lawyers have called him asking about its status.

"I've never seen anything like it," he said.

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Information from: Lexington Herald-Leader, http://www.kentucky.com

Published: Wed, Jul 7, 2010

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