Estate Planning and Zombie Cases

By David McGrath, AAML

For a different flavor on the theme of estate planning, I will highlight two Connecticut Appellate decisions over the past two years that, like any good zombie story, involved the cases shambling along long after the death of a litigant. (Perhaps this would have been more appropriate for the edition of the newsletter closest to Halloween, but I digress).

First: Ciarleglio v. Martin, 228 Conn.App. 241 (2024) is a tale of a gold-digger who failed to dig gold, as well as a case that outlived the Husband.

Vincent Ciarleglio was 82 and Miriam Martin was 52, when, in the frigid New England winter (admittedly, there was a high of 40 degrees in Connecticut on February 7, 2019, so perhaps not that frigid), the parties obtained a marriage license and married the same day. They were not burdened by any friends or family, only by a justice of the peace who was a friend of Miriam’s. Just two days prior, Vincent had had a surgical procedure, and he was suffering from numerous medical conditions, for which he was hospitalized two days later.

Vincent’s niece was appointed as his voluntary conservator in May, and in June, commenced an action for annulment on the basis that Vincent was incompetent at time of marriage. Several pendente lite motions were filed seeking exclusive use of Vincent’s home and the return of certain property. Vincent died, intestate, just two months later.

Miriam filed a motion to dismiss the annulment case for lack of subject matter jurisdiction based on Vincent’s death. The trial court cited C.G.S. § 52-599(a) for the conclusion that death does not terminate a cause of action but dismissed the case without prejudice because it was not aware of any fiduciary acting on behalf of the estate. Less than a month later, the probate court appointed a temporary administrator who moved to open the judgment of dismissal and act on Vincent’s behalf. The trial court granted the motion to open the judgment and the motion to substitute the administrator for Vincent.

A 3-day trial was held, and the trial court issued a memorandum of decision finding that, on the day of the marriage, Vincent was severely compromised by numerous medical issues and was not competent to make decisions due to, inter alia, insufficient oxygen to his brain, based on credible expert testimony. The trial court also found Vincent’s niece’s testimony credible that Vincent initially did not know he was married and then expressed the view that he had been tricked! The trial court found the testimony of Miriam and the witness who performed the ceremony not to be credible. The trial court found overwhelming evidence that Vincent was unable to consent to marriage due to lack of competence and rendered judgment annulling the marriage. Miriam appealed.

Miriam argued on appeal was that the trial court lacked subject matter jurisdiction because the administrator lacked standing to continue the annulment action following Vincent’s death. The Appellate Court analyzed C.G.S. § 52-599 under the plain meaning rule and found that its broad and mandatory language provided subject matter jurisdiction to the trial court and that the administrator as plaintiff was statutorily aggrieved and had standing.

Miriam further argued that C.G.S. § 52-599(c)(1) provided an exception where “the purpose or object of [the action] is defeated or rendered useless by the death of any party thereto …” in light of C.G.S. § 46b-40 which terminates marriage upon the death of either party. The Appellate Court disagreed, noting that the purposes of the underlying action were heightened by the impact of the intestate death, and that, in this annulment action, the administrator sought to prove that the marriage was void from its inception, not to reinstate it (at which time death would terminate it). The Appellate Court held that § 46b-40, which terminates a marriage upon death, was irrelevant in the context of seeking to annul a marriage as void from inception.

Miriam also argued on appeal was that the marriage remained valid until it automatically terminated upon Vincent’s death, at which point it was too late to void it under C.G.S. § 46b-40. The Appellate Court applied plenary review, noted that the legislature could have prohibited post-mortem annulments as has been done in other states (citing a Wisconsin statute which prohibits annulment after the death of a party), noted that § 46b-40 also provides that an “annulment shall be granted if the marriage is void or voidable …” and held that the death of Vincent did not render the annulment an impermissible collateral attack on the marriage.

Check your local statutes to determine if, like Wisconsin, pursuant to Wis. Stat. § 767.313 (2), your state is more fertile ground for gold-digging than the land of steady habits here in Connecticut.

Second: Pasciolla v. Pasciolla, 230 Conn.App. 174 (2025) is a tale of post-humous alimony. Unlike the Husband, the alimony award stubbornly refused to die.

Christine and James Pasciolla married in 1981 and were divorced by agreement in 1998. Husband would pay alimony of $700/week (later modified to $300/week) for the duration of Wife’s life, terminating on the earliest of Wife’s remarriage, Wife’s cohabitation or Wife’s death. No mention was made of Husband’s death!

In 2019, James died. Rather than mourn his passing, Christine filed a claim in probate seeking enforcement of alimony against James’ estate. The Executrix filed a motion to open and intervene in the dissolution action and a motion to modify or terminate the alimony, arguing that the separation agreement waived claim to the estate and there was no income stream from which the estate could pay alimony. The trial court granted the Executrix’s motion to intervene but denied the motion to modify, holding that the alimony award did not terminate on Husband’s death, and the terms actually held the award to be binding on his estate. Post-mortem alimony would continue!

In 2021 the Executrix made a second attempt and filed an amended post-judgment motion to modify or terminate alimony alleging that (1) the estate lacked the resources for alimony, (2) the separation agreement waived claims against the estate and (3) that Christine was cohabitating. Christine filed a motion to dismiss based on lack of subject matter jurisdiction and the Executrix filed an objection.

Christine argued that the court was without jurisdiction to hear the Executrix’s motion because the dissolution action itself terminated on death of one of the parties. That’s a creative and powerful argument: that alimony not only continues after death but it must continue forever because the action is over and no court can ever modify it now! The trial court concluded that it had jurisdiction to address the preliminary issue of Wife’s claim for alimony for life and the Executrix’s right to object, as that had involved interpretation of the language of the agreement, but held that it lacked subject matter jurisdiction to hear a motion to modify, granting the motion to dismiss.  The Executrix appealed.

The Appellate Court noted that the issue of subject matter jurisdiction can be raised at any time and cannot be waived, that dismissal is the proper vehicle to address subject matter jurisdiction, and that the decision was subject to de novo review. It articulated that standing is not a technical rule or a test of substantive rights, it is a practical concept to prevent vindictive nonjusticiable interests. There must be a colorable claim of direct injury and focusses on the proper party. The Appellate Court agreed with the Executrix that the trial court improperly found she lacks standing. The alimony award had been found to be binding upon estate. The estate can be heard only through the Executrix.  The Executrix stands in the shoes of Husband.

The Judgment was reversed and the case remanded for the Executrix’s motion to modify alimony be heard. This will be round three of James, may he rest in peace, seeking to cease paying alimony from the grave. Thus will James’ estate will be tasked, inter alia, with proving that his widow is co-habitating with another man as a basis to modify his grave (pun intended) stream of payments. Draft carefully!