Should a surviving spouse remain entitled to an elective share even if the marriage was procured by fraud or undue influence exercised upon the decedent, or if the decedent was incapacitated at the time of the marriage?  In a recent case, Matter of Berk (20 Misc 3d 691 [Sur Ct, Kings County 2008]), the decedent’s estate opposed his widow’s notice of election alleging that circumstances of the marriage rendered it null and void ab initio, thereby eliminating her rights pursuant to EPTL 5-1.1-A.  She moved for summary judgment. 

The decedent died in 2006, leaving a will dated July 10, 1982.  The marriage occurred almost exactly one year prior to the decedent’s death; he was 99 at the time, she was 47.  Interestingly enough, the couple’s marital status had been concealed, and it was only after the decedent’s death that his family learned of the situation.  According to the estate, at the time of the marriage the decedent lacked the requisite mental capacity “to understand the nature, effect and consequences of marriage, or to enter into a marriage contract” (id.).  The estate further claimed that the evidence suggested that the decedent’s consent to the marriage was obtained by force, duress or fraud exercised by his widow.  The Court held that even assuming the truth of these allegations, they were irrelevant on the motion for summary judgment, and granted the widow her elective share.

The Court explained that Domestic Relations Law Section 7 renders a marriage voidable, not void, when one of the parties was incapable of consenting for want of understanding, or consented by force, duress or fraud.  Consequently, the Court noted that the decedent’s marriage was valid at the time of his death because a voidable marriage only becomes void upon a court’s declaration of its nullity.  In light of these facts, the Court stated that “a surviving spouse’s right to elect against a will is not disturbed even if the marriage is annulled post-death,” and rendered summary relief considering only the terms of EPTL 5-1.1-A and 5-1.2 (id.).

 Pursuant to EPTL 5-1.1-A, a surviving spouse is entitled to his or her elective share if the parties had been married on the date of the decedent’s death, unless one of the disqualifying factors of EPTL 5-1.2 can be demonstrated to the satisfaction of the court.  EPTL 5-1.2 limits the disqualifying factors to the following: (1) divorce or annulment at the time of the spouse’s death; (2) a void or incestuous marriage; (3) divorce or annulment having been procured by the surviving spouse outside of New York, or a dissolution of the marriage on grounds of absence, not recognized as valid in New York; (4) a final judgment of separation obtained in New York against the surviving spouse, in effect when the deceased spouse died; (5) the surviving spouse abandoning the deceased spouse; or (6) the surviving spouse failing to support the deceased spouse during his or her lifetime. 


Here, the widow was granted an elective share of an estate valued at over $5 million despite the Court’s recognition of the extremely suspicious facts surrounding the validity of her marriage.  While the decision clearly adheres to well-established law, the result does not seem equitable. 


It will be interesting to see what happens if the estate chooses to appeal.  The Surrogate’s determination was not only in accordance with statute, but was also in compliance with a longstanding opinion rendered by the Fourth Department (see Bennett v Thomas, 38 AD2d 682 [4th Dept 1971]).  Perhaps a spotlight on a decision such as this can prompt an amendment to EPTL 5-1.2, or direction from the Appellate Division or Court of Appeals granting trial courts discretion to disqualify a “surviving spouse” from a right of election when presented with clear evidence of fraud, undue influence, duress, or lack of capacity, even if the marriage was technically “valid” at the time of death.