Exoneration clauses seek to excuse fiduciaries, most notably executors and trustees, from liability for the failure to exercise reasonable care (cf. Margaret Valentine Turano, Practice Commentary: EPTL § 11-1.7 [2008] [discussing exoneration clauses]; Matter of Knox, 98 AD3d 300, 312-13 [4th Dep’t 2012]). Until recently, Estates, Powers and Trusts Law (“EPTL”) § 11-1.7 provided that exoneration clauses in testamentary instruments (i.e., wills and codicils) were void as against public policy, but did not address whether similar provisions in lifetime trust instruments were enforceable. In late-August 2018, Governor Cuomo signed into law amendments to EPTL § 11-1.7, which my colleague, Ilene S. Cooper, and I drafted as members of the New York State Bar Association’s Trusts and Estates Law Section, and which provide that exoneration clauses in lifetime trust instruments executed after August 24, 2018 are void as against public policy. This blog post discusses EPTL § 11-1.7 and the August 2018 amendments to that statute.

Prior to August 2018, EPTL § 11-1.7 prohibited a testator from exculpating an executor or trustee of a testamentary trust nominated in the testator’s will from liability for failing to “exercise reasonable care, diligence and prudence”. Will provisions that purported to do so were deemed void as against public policy (see Matter of Egerer, 30 Misc3d 1229[A], at *3 [Sur Ct, Suffolk County 2006]). Surrogate’s Court judges have described exoneration clauses in testamentary instruments as “toothless tiger[s]” (see Matter of Lubin, 143 Misc2d 121, 122 [Sur Ct, Bronx County 1989]), and “nothing more than a waste of good white paper” (see Matter of Stralem, 181 Misc2d 715, 719-20 [Sur Ct, Nassau County 1999]).

Although EPTL § 11-1.7 unquestionably applied to exoneration clauses in testamentary instruments before August 2018, the statute was silent as the enforceability of exculpatory provisions in lifetime trust instruments until August 24, 2018. That statutory silence led courts to conclude that exoneration clauses in inter vivos trust instruments generally were enforceable, except to the extent that they sought to excuse a trustee from liability for gross negligence, reckless indifference, self-dealing, or bad faith (see Matter of Tydings, 32 Misc3d 1204[A], at *6 [Sur Ct, Bronx County 2011]; Boles v Lanham, 55 AD3d 647, 648 [2d Dep’t 2008] [opining that a “trustee is liable if he or she commits a breach of trust in bad faith, intentionally, or with reckless indifference to the interests of the beneficiaries”]).

Fortunately, the August 2018 amendments to EPTL § 11-1.7 fill the aforementioned silence in the statute, and make clear that EPTL § 11-1.7 applies to executors, trustees of testamentary trusts, and trustees of lifetime trusts. Going forward, trustees of inter vivos trusts will not be able to rely upon exoneration clauses in order to avoid liability for losses that arise from their negligence, provided that the lifetime trust instruments under which they act are dated on or after August 24, 2018. In short, the August 2018 amendments to EPTL § 11-1.7 provide greater protection to beneficiaries of lifetime trusts who suffer losses as a result of negligence on the part of the trustees who administer their trusts.

E-mail is seemingly omnipresent. Day in and day out, we use it in our business, social, and personal affairs. Yet, the improvements to the technology associated with e-mail have far outpaced the development of the law concerning our e-mail accounts and the rights that our survivors may have to access those accounts upon our deaths. This post addresses New York’s recently-enacted digital assets legislation, as well as Surrogate Mella’s well-reasoned decision in Matter of Serrano, which appears to be the first reported case to apply that legislation.

In 2016, the New York Legislature enacted a version of the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act in Article 13-A (“Article 13-A”) of the Estates, Powers and Trusts Law (“EPTL”) (see Matter of Serrano, 2017-174, NYLJ 1202790870327 [Sur Ct, New York County June 14, 2017]). Article 13-A seeks to balance the tension that may exist between (a) the well-settled notion that the fiduciary of a decedent’s estate stands in the decedent’s shoes after the decedent’s death, and (b) the public policy that favors respecting the decedent’s privacy upon the decedent’s demise (see Legislative Memorandum in Support of Article 13-A).

Under Article 13-A, except where a deceased user has prohibited disclosure of digital assets before death, or a court orders otherwise, the custodian of electronic records has a statutory duty to disclose to the personal representative of the decedent’s estate “a catalogue of electronic communications sent or received by a deceased user (other than the content of the electronic communications)” upon receipt of the following from the personal representative: (a) a written request for such disclosure; (b) a copy of the deceased user’s death certificate; and (c) a certified copy of the letters appointing the fiduciary (or a small-estate certificate or court order) (see Serrano, supra; EPTL § 13-A-3.2). A custodian of electronic records may request: (a) the username for the deceased user’s account, among other identifying information; (b) “evidence linking the account to the [deceased] user”; (c) “an affidavit stating that disclosure of the [deceased] user’s digital assets is reasonably necessary for administration of the [deceased user’s] estate”; or (d) a judicial determination that the deceased user had an account with the custodian, or that “disclosure of the [deceased] user’s digital assets is reasonably necessary for administration of the estate” (see id.). Critically, Article 13-A defines the term “catalogue of electronic communications” as “information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person” (see EPTL § 13-A-1[d]).

With respect to the content of electronic communications (i.e., the text of e-mails), Article 13-A provides that, where a deceased user has consented to, or a court orders, “disclosure of the contents of electronic communications of the [deceased] user,” the custodian of electronic records “shall disclose to the executor, administrator or personal representative of the estate of the [deceased] user the content of” the deceased user’s electronic communications, if the fiduciary of the deceased user’s estate provides the following to the custodian: (a) a written request for such disclosure; (b) a copy of the deceased user’s death certificate; (c) a certified copy of the letters appointing the fiduciary (or a small-estate certificate or court order); and (d) “unless the [deceased] user provided direction using an online tool, a copy of the [deceased] user’s will, trust or other record evidencing the user’s consent to disclosure of the content of [the deceased user’s] electronic communications” (see EPTL § 13-A-3.1[a]-[d]).[1] A custodian of electronic records may request: (a) the username for the deceased user’s account, among other identifying information; (b) “evidence linking the account to the [deceased] user”; or (c) a judicial determination that (i) the deceased user “had a specific account with the custodian”, (ii) “disclosure of the content of [the deceased user’s] electronic communications . . . would not violate [the federal Stored Communications Act, which Congress “enacted in 1986 as part of the Electronic Communications Privacy Act”,] or other applicable law”, (iii) “unless the [deceased] user provided direction using an online tool, the [deceased] user consented to disclosure of the content of electronic communications”; or (iv) “disclosure of the content of [the deceased user’s electronic communications] is reasonably necessary for administration of the [deceased user’s] estate” (see EPTL § 13-A-3.1[e]).

With the foregoing statutory provisions in mind, Surrogate Mella recently addressed whether the fiduciary of a decedent’s estate had a statutory right to “access his deceased spouse’s Google email, contacts and calendar information in order to ‘be able to inform friends of [the decedent’s] passing’ and ‘close any unfinished business’” (see Serrano, supra). Surrogate Mella was called upon to address this issue after the fiduciary contacted Google in order to obtain such access, prompting Google to request “a court order specifying that, among other things, ‘disclosure of the content [of the requested electronic information] would not violate any applicable laws, including but not limited to the Electronic Communications Privacy Act and any state equivalent” (see id.).

In considering the fiduciary’s right to access the contacts and calendar (i.e., the non-content material) associated with the decedent’s Google e-mail account, Surrogate Mella found that the requested disclosure was warranted and directed Google to make it (see id.). The Surrogate explained that “disclosure of the non-content information is permitted, if not mandated, by Article 13-A of the EPTL and does not violate [the governing federal privacy law]” (see id.).

With respect to the fiduciary’s request to access the contents of the decedent’s Google e-mail account (the actual text of the e-mail messages), Surrogate Mella reached a different result (see id.). The Surrogate wrote: “Authority to request from Google disclosure of the content of the decedent’s email communications – to the extent that [the fiduciary] requests such authority – is denied without prejudice to an application . . . , on notice to Google, establishing that disclosure of that electronic information is reasonably necessary for the administration of the estate” (see id.). Interestingly, the decision does not indicate that the decedent consented to granting the fiduciary of his estate access to the content of his e-mails (see id.).

In light of the foregoing, it appears that, absent a prohibition by the user, the fiduciary of a deceased user’s estate should, in most instances, be granted access to the non-content information associated with the deceased user’s e-mail account upon compliance with Article 13-A. Where the user consents to the fiduciary of his or her estate accessing the content of the user’s electronic communications, or a court orders otherwise, the fiduciary of the deceased user’s estate may be granted access to the content of the deceased user’s e-mail account under Article 13-A. It will be interesting to see how the Surrogates apply Article 13-A in the future.

[1] Article 13-A defines the term “online tool” as “an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person” (see EPTL § 13-A-1[p]). Facebook’s “legacy contact” feature appears to be an example of an online tool.

As parties prepare for trial before the Surrogate’s Court, a question that oftentimes arises is whether the parties have a right to a trial by jury. The right to a jury trial is anything but universal in Surrogate’s Court proceedings, and, in fact, does not exist in a proceeding concerning the removal of a fiduciary. This blog post explains why no right to a jury trial exists in a Surrogate’s Court removal proceeding.

The Surrogate’s Court Procedure Act (“SCPA”) provides that a party is only entitled to a jury trial in a proceeding “in which any controverted question of fact arises as to which [the] party has a constitutional right of trial by a jury, in any proceeding for the probate of a will in which a controverted question of fact arises, and in any proceeding commenced after the death of the creator of a revocable lifetime trust to contest the validity of such trust in which a controverted question of fact exists” (see SCPA § 502[1]). Under Article 1, Section 2 of the Constitution of the State of New York, a constitutional right to a jury trial only exists in those “cases in which it has heretofore been guaranteed by constitutional provisions” (see N.Y. Const. Art. 1, § 2; Matter of Mastro’s Will, 100 Misc2d 866, 867 [Sur Ct, Suffolk County 1979] [citations omitted] [“The result of (that) constitutional provision, enacted in 1938, is that the constitutional guarantee of a jury trial continues only to the degree that such jury trials were authorized prior to the 1938 Constitution”]).

Based upon the foregoing, in Matter of Ruggiero, the Second Department held that a party did not have a right to a jury trial in a removal proceeding (see Matter of Ruggiero, 51 AD2d 969, 969-71 [2d Dep’t 1976]). There, the petitioner sought a trial by jury in the proceeding she commenced to remove the decedent’s sister as the fiduciary of the decedent’s estate (see id.). The Surrogate’s Court and Appellate Division both found that a jury trial was unwarranted, mindful that there is no right to a trial by jury in a removal proceeding under the New York State Constitution or the SCPA (see id.).

In light of the foregoing, a party preparing for trial in a Surrogate’s Court removal proceeding should plan to proceed before the Surrogate. Such a party does not have a right to have its trial heard by a jury.

In terrorem clauses generally provide that, where a beneficiary under a testamentary instrument unsuccessfully challenges the instrument’s validity, the beneficiary will forfeit any interests obtained under the instrument.  Testators include in terrorem clauses in their wills in order to dissuade estate beneficiaries from taking action that is contrary to the testators’ wishes, as expressed in their testamentary instruments.  While a paramount objective of the Surrogate’s Court is to act according to testators’ wishes, in terrorem clauses must be narrowly construed, and certain in terrorem provisions are violative of public policy.  This post provides examples of in terrorem clauses that contravene public policy and, thus, are unenforceable under New York law.

Though in terrorem clauses are intended to prevent attacks on the validity of a will, Surrogate’s Courts have recognized that in terrorem provisions which purport to preclude a beneficiary from seeking the removal or suspension of a fiduciary nominated in the governing instrument, based upon the fiduciary’s misconduct, are violative of public policy (Matter of Rimland, 2003 WL 21302910, at *1-2 [Sur Ct, Bronx County 2003]; Matter of Fromartz, NYLJ, Oct. 22, 2005, at 29, col. 1 [Sur Ct, Kings County]).  Indeed, it “is disingenuous for [a party] to contend that [a testator] intended that [a fiduciary acting under a will] serve [as a fiduciary] even if [the fiduciary] violated [his or] her obligations under [the governing instrument] and [his or] her sacred duties of undivided loyalty” (see Rimland, 2003 WL 21302910, at *1-2). 

Former Surrogate Holzman’s decision in Matter of Rimland is highly instructive.  There, the petitioner, the income beneficiary of a testamentary trust, commenced a proceeding for the appointment of a fiduciary to pursue claims against the trustee (see id.).  In response, the trustee argued that the petitioner had triggered the governing will’s in terrorem clause and, therefore, forfeited her interest in the trust (see id.).  Surrogate Holzman was not persuaded by the trustee’s arguments, holding that the trustee’s interpretation of the in terrorem clause was violative of public policy (see id.).

Much like in terrorem clauses which purport to prevent a beneficiary from seeking the removal or suspension of a fiduciary on the basis of the fiduciary’s wrongdoing are violative of public policy, so too are in terrorem clauses which attempt to preclude a beneficiary from questioning the fiduciary’s conduct (see Matter of Egerer, 30 Misc3d 1229[A], at *1-4 [Sur Ct, Suffolk County 2006]).  As Surrogate Czygier has explained, “any attempt by a testator to preclude a beneficiary from questioning the conduct of the fiduciaries, from demanding an accounting from said fiduciaries or from filing objections thereto will result in a finding that the pertinent language is void as contrary to public policy and the applicable statutes of the State of New York” (see id.).

For example, in Matter of Egerer, Surrogate Czygier construed an in terrorem clause which purported to disinherit a beneficiary under the testator’s will who filed “objections to [the] fiduciaries’ conduct, bad faith or for any other basis” (see id.).  The Surrogate found that the in terrorem clause was unenforceable as a matter of public policy, to the extent that it could be interpreted as preventing the beneficiaries from objecting to the fiduciaries’ conduct (see id.).

The lesson to take away from this post is that, while testamentary intentions are entitled to great respect, there are limits to which the Surrogate’s Courts will adhere to the wishes expressed by testators, especially concerning in terrorem clauses.  Practitioners should be mindful of the limitations, including the public-policy based concerns discussed in this article, in advising their clients with respect to in terrorem provisions.

Although summary judgment in a contested probate proceeding historically has been rare, the recent trend has been for Surrogate’s Courts to grant such relief with increasing frequency.  Consistent with that recent trend, Surrogate’s Courts have granted summary judgment dismissing probate objections alleging that a testator lacked testamentary capacity, notwithstanding the testator’s diagnosis of dementia before executing the propounded will.  This post discusses several cases in which a testator’s diagnosis of dementia prior to executing the propounded will was insufficient to raise a triable issue of fact to withstand summary judgment dismissing a capacity objection.

The threshold for establishing testamentary capacity is extraordinarily low (see Matter of Rabbit, 21 Misc 3d 1118[A] [Sur Ct, Kings County 2008]).  This is because the capacity that is necessary to execute a valid will is less than that which is required for any other legal transaction (see id.).  All that is necessary is that a testator: (a) understand the nature and consequences of making a will; (b) know the nature and extent of his or her property; and (c) know the natural objects of his or her bounty and relations with them (see Matter of Kumstar, 66 NY2d 691 [1985]). 

Additionally, as a testator’s mental capacity must be assessed at the precise time of the instrument’s execution (see Matter of Schure, 2012 NY Misc LEXIS 5755 [Sur Ct, Nassau County Dec. 17, 2012]), a testator need only have a “lucid interval” of capacity to execute a valid will (see Matter of Minasian, 149 AD2d 511 [2d Dept 1989]).  Indeed, courts have found that testators had testamentary capacity, even though the testators were afflicted with ongoing mental illness (see Matter of Esberg, 215 AD2d 655 [2d Dept 1995]), progressive dementia (see Matter of Friedman, 26 AD3d 723 [3d Dept 2006]), and physical weakness (see Matter of Swain, 125 AD2d 574 [2d Dept 1986]).  As a result, it should come as no surprise that Surrogate’s Courts have granted summary judgment dismissing capacity objections, despite that the subject testators were diagnosed with dementia before they executed testamentary instruments. 

Case in point, in Matter of Schure (a case in which Farrell Fritz, P.C. represented the proponent of the testator’s will), the testator’s children opposed the proponent’s motion for summary judgment, alleging that a trial was necessary on the issue of capacity because the testator had been diagnosed with dementia several years before he executed the propounded instrument (see Schure, supra).  Nassau County Surrogate Edward W. McCarty, III, did not credit the objectants’ argument and, instead, granted summary judgment dismissing the capacity objection, among all of the other objections (see id.) In admitting the testator’s will, dated December 21, 2005, to probate, Surrogate McCarty cited the following evidence: (a) in July 2005, the testator called the propounded instrument’s attorney-draftsperson and made an appointment to discuss his estate planning; (b) in July 2005, the testator met with the attorney-draftsperson and his associate to discuss his estate planning and family; (c) in late-November 2005, the testator once again met with the attorney-draftsperson, his associate, and another colleague from their firm to discuss the terms of the testator’s will; (c) in early-December 2005, the testator met with one of his treating physicians, who made no notes in his file of the testator having psychological difficulties during their meeting and signed an affidavit stating that he would have noted such difficulties had he observed any; (d) on December 21, 2005, the testator executed the propounded will in the presence of the attorney-draftsperson, his associate, and another experienced trusts and estates practitioner; and (e) the attorneys attested to the fact that the testator was of sound mind at the time that he executed the will (see id.).     

Monroe County Surrogate Edmund A. Calvaruso’s decision in Matter of Petix is also instructive (see Matter of Petix, 15 Misc 3d 1140[A] [Sur Ct, Monroe County 2007]).  There, the testator died on April 29, 2005, just six months after executing his last will and testament on November 2, 2004 (see id.).  Inasmuch as the testator’s son was the nominated executor and sole beneficiary under the propounded will, the testator’s granddaughter, the daughter of his predeceased daughter, filed probate objections, alleging that the testator lacked testamentary capacity, among other things (see id.).  The bases for the capacity objection were the following: “a medical note by a Dr. Blackburn, dated 12/19/02, which stated that [the testator] was demented to the point where his driving was impaired;” and “two police reports, one where [the testator] had lost his car, and one where [the testator] had lost his wallet” (see id.). 

Notwithstanding the granddaughter’s proof that the testator had been diagnosed with dementia, Surrogate Calvaruso granted summary judgment dismissing the testamentary capacity objection (see id.).  In doing so, the court found that the granddaughter failed to offer proof to suggest that at any time on November 2, 2004, the date upon which the will was executed, the testator lacked capacity to make a will (see id.).  The court also noted that “a dementia diagnosis and lack of testamentary capacity are not one in the same” (see id.).  Accordingly, summary judgment dismissing the testamentary capacity objection was warranted (see id.).

To withstand a motion for summary judgment dismissing a capacity objection, a probate objectant generally will need to do more than show that a testator was diagnosed with dementia prior to executing the propounded will.  In light of Schure and Petix, among other decisions, a diagnosis of dementia may not be sufficient to raise a triable issue of fact to survive a motion for summary judgment on the issue of capacity.



As I wrote in a prior post, dated February 25, 2011, concerning the Estate of Dianne Edwards, the “slayer rule” articulated by the Court of Appeals in Riggs v. Palmer provides that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime” (Riggs v. Palmer, 115 N.Y. 506, 511 [1889]). Although forfeiture does not occur in cases involving accidental killings, self-defense, and disabilities that negate a culpable mental state, the maxim articulated in Riggs has been utilized to preclude a person who intentionally kills another from taking as a beneficiary of his or her victim’s estate. 

Relying upon Riggs, Suffolk County Surrogate John M. Czygier, Jr. recently held in Matter of Edwards that, under the slayer rule, an intentional killer forfeited his right to inherit not only from the estate of his victim, but also the estate of the victim’s post-deceased legatee (see Matter of Edwards, NYLJ, Apr. 13, 2012, at 35 [Sur. Ct., Suffolk County]). Surrogate Czygier’s finding was noteworthy for a variety of reasons, not the least of which was that the intentional killer was the sole beneficiary of the estate of his victim’s legatee (see id.).

In Edwards, Brandon Palladino (“Brandon”) was convicted of Manslaughter in the First Degree and sentenced to a twenty-five year term in prison in connection with the death of his mother-in-law, Dianne Edwards (“Dianne”) (see Carol MacGowan, “Fight Over Estate Continues After Sentencing”, Newsday, Feb. 3, 2011). Surrogate’s Court litigation arose after a party acting for Brandon’s benefit sought to ensure that Brandon received a substantial portion of Dianne’s estate, as beneficiary of his deceased wife Deanne Palladino’s (“Deanna”) estate (see Edwards, supra).

Dianne died, testate, leaving her entire estate to her daughter, Deanna (see id.). Although Deanna survived Dianne, she died of an accidental drug overdose, leaving no will (see id.). While, under normal circumstances, Brandon, as Deanna’s surviving spouse (with no issue), would have inherited Deanna’s entire estate, including any bequests that she received from Dianne, the circumstances in Edwards were highly unusual (see id.).

Dianne’s surviving relatives argued that, under the slayer rule, Brandon forfeited any interest in Dianne’s estate that he otherwise might have had in the assets of her estate, even indirectly as a beneficiary of Deanna’s estate (see id.). Surrogate Czygier agreed, finding that Brandon could not inherit from Dianne (see id.). In doing so, the Surrogate explained that “one who takes the life of another should not be allowed to profit from his wrongdoing” (see id.). But for Brandon’s wrongdoing, there “would be no inheritance to be obtained through his wife Deanna” (see id.). As a result, considering Brandon’s wrongdoing and his conviction, Brandon forfeited any right he otherwise might have had to inherit Dianne’s property as Deanna’s sole distribute (see id.).

The application of the slayer rule has been extended beyond those situations in which intentional killers seek to take as beneficiaries of their victims’ estates. Indeed, as Edwards demonstrates, the slayer rule has been utilized to deny intentional killers the right to inherit property belonging to their victims, whether directly as beneficiaries of the victims’ estates or indirectly through the estates of the victims’ legatees or distributees. The extension of the slayer rule is consistent with standards of common sense and decency.




Estate litigation oftentimes arises when parents favor one or more of their children over others in their estate plans. Fortunately, at least for the parents, they typically do not have to deal with the issues involved in the litigation, as they are deceased by the time that it arises. As the Second Department’s decision in Sharrow v. Sheridan demonstrates, however, disfavored children do not always wait for their parents to pass before commencing litigation concerning the parents’ assets. Indeed, some disfavored children have gone so far as to sue their parents and siblings as “potential heirs” of the parents’ estates. This blog entry explains why such a strategy will prove unsuccessful.

In Sharrow, the plaintiff commenced an action against his mother and his sister, seeking to impose a constructive trust on certain assets that the mother transferred to the sister (see Sharrow v. Sheridan, 91 AD3d 940, 940-41 [2d Dept 2012]). The plaintiff alleged that a constructive trust was warranted because the sister exercised duress and undue influence on the ailing mother in pressuring her to transfer the assets to the sister (see id.). When the mother and sister moved to dismiss the plaintiff’s complaint, the plaintiff asserted that he had standing to seek a constructive trust over the assets formerly belonging to his mother as a “potential heir” of her estate (see id.).

The Supreme Court granted the defendants’ motions to dismiss and the Appellate Division affirmed (see id.). In affirming, the Second Department found that the plaintiff lacked standing to seek to impose a constructive trust on the assets that his mother transferred to his sister (see id.). As the court explained, for as long as she was alive, the mother had “the absolute right to change her intentions regarding the distribution of her assets” (see id.). Accordingly, the court concluded that the plaintiff’s interest as a “potential heir” of his mother’s estate was a “potential, speculative interest” that did not vest him with standing to prosecute a constructive trust claim concerning his mother’s former assets (see id.).

Of course, Sharrow is not the only case in which a child sought to void an inter vivos transfer made by a parent as a potential heir of the parent’s estate. In Schneider v. David, the plaintiff commenced an action to impose a constructive trust on real property that her mother transferred to her brother (see Schneider v. David, 169 AD2d 506, 506-08 [1st Dept 1991]). Among other things, the plaintiff alleged that her brother had fraudulently induced their elderly mother to convey the properly to him by telling the mother that the deed she signed only permitted him to manage the property while she was out-of-state (see id.). The defendant moved to dismiss, arguing – with his mother’s support – that the plaintiff lacked standing to seek a constructive trust (see id.).

Although the Supreme Court denied the defendant’s motion, the First Department reversed (see id.). The Appellate Division reasoned that the plaintiff was not a party to her mother’s conveyance of the property and could not void it simply because she considered herself to be an heir of her living mother’s estate (see id.). In short, the plaintiff’s self-serving description of herself as a potential heir of her mother’s estate did not cloak her with standing to sue or exercise rights on her mother’s behalf (see id.).

There are several lessons to take away from Sharrow and Schneider, the most obvious of which is for children to respect the wishes of their parents as those wishes relate to the parents’ assets during life. Putting the obvious aside, however, disfavored children and their attorneys should take note of the well-reasoned legal principle that, as “potential heirs” of their parents’ estates, they lack standing to take legal action concerning their parents’ assets. During their lives, the assets belong to the parents and are subject to the parents’ absolute right to dispose of their property as they wish.


Under New York law, a decedent is prohibited from disinheriting his or her surviving spouse (see Margaret Valentine Turano, Practice Commentaries: EPTL § 5-1.1-A [1999 ed.]). Consistent with that prohibition, the laws of this state provide that a decedent’s surviving spouse has a personal right of election to take a portion of the decedent’s estate, whether or not the decedent provides for the spouse in his or her last will and testament (see EPTL § 5-1.1-A). Predictably, the right of election has given rise to extensive litigation, as evidenced by Suffolk County Surrogate John M. Czygier, Jr.’s recent decision in Matter of Newman (see Matter of Newman, 883 P 2007/A, NYLJ 1202520804987 [Sur Ct, Suffolk County Nov. 1, 2011]). As discussed below, Newman is noteworthy because it addresses the extent to which a judicial determination that the alleged surviving spouse’s marriage to the decedent was unlawful will affect the spouse’s right to elect against the decedent’s estate.

EPTL § 5-1.1-A provides that the surviving spouse of a decedent who dies on or after September 1, 1992, has a personal right to elect against the decedent’s estate (see EPTL § 5-1.1-A), unless it is established that the marriage upon which the surviving spouse relies was incestuous, bigamous, or a prohibited remarriage under the Domestic Relations Law (see Newman, supra). The financial consequences of a surviving spouse asserting elective share rights can be substantial, as the pecuniary value of the elective share is equal to “the greater of (i) fifty thousand dollars or, if the capital value of the [decedent’s] net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate” (see EPTL § 5-1.1-A).

In Newman, the decedent’s alleged surviving spouse, Kenneth Newman (“Kenneth”), sought to exercise his elective share rights against the decedent’s estate (see Newman, supra). After the decedent’s will was admitted to probate, the fiduciary of her estate commenced a proceeding to determine the validity of Kenneth’s election against the estate (see id.). Kenneth died before the matter was resolved, and the executor of the decedent’s estate ultimately moved for summary judgment concerning Kenneth’s notice of election (see id.).

Surrogate Czygier held that Kenneth’s notice of election was invalid, as his marriage to the decedent was unlawful (see id.). In reaching that conclusion, the Surrogate found that, at the time he allegedly married the decedent, Kenneth had not yet divorced (and, thus, was still married to) his first wife (see id.). Absent evidence that Kenneth and the decedent “remarried” after Kenneth divorced his first wife, the executor of the decedent’s estate presented sufficient evidence to rebut the presumption that Kenneth’s “second marriage [was] valid and that the prior marriage was dissolved by death, divorce, or annulment” (see id.). Accordingly, as Kenneth’s marriage to the decedent was unlawful, his notice of election was void and unenforceable (see id.).

In sum, while a surviving spouse generally has a right to elect against a decedent’s estate, that right is not absolute (see Matter of Berk, 71 AD3d 883 [2d Dep’t 2010]). To the extent that the surviving spouse’s marriage to the decedent is unlawful, the survivor will not receive his or her elective share.

As the problem of elder abuse has become increasingly prevalent in recent years, so too has the need to protect elders who suffer abuse, whether physical, mental, or financial, at the hands of the individuals to whom they have entrusted their care and affairs (see Campbell v Thomas, 73 AD3d 103, 104 [2d Dept 2010]). Recent case law demonstrates that elderly individuals can fall prey to their much younger caregivers who secretly marry the elderly in the hopes of benefiting from their estates (see id.; Matter of Berk, 71 AD3d 883, 883-86 [2d Dept 2010]; Matter of Kaminester, 26 Misc3d 227, 235-37 [Sur Ct, New York County 2009]). For family members who are aware of such abuse, one solution may be to commence an Article 81 guardianship proceeding and to seek to have the marriage revoked by a guardianship court (see Mental Hygiene Law 81.29).

Under Mental Hygiene Law 81.29, an Article 81 guardianship court “may modify, amend, or revoke . . . any contract [including one involving a marriage] made while the person was incapacitated” (see Mental Hygiene Law 81.29). In this regard, the Appellate Division, Second Department, has held that a marriage may be revoked when the evidence shows that one of the parties to the marriage “was ‘incapable of understanding the nature, effect, and consequences of the marriage’” at the time that it occurred (Matter of Joseph S., 25 AD3d 804, 806 [2d Dept 2006]). The factors that the guardianship court considers in determining whether to revoke a marriage include, among other things, the differences in the purported spouses’ ages; whether the spouses cohabited; whether there was a change in residency; whether the spouses wore wedding rings; and whether there is any evidence of financial exploitation of the incapacitated spouse (see Matter of I.I.R., 21 Misc.3d 1136[A], at *2 [Sup Ct, Nassau County 2008]).

Matter of Carmen R. is instructive (see 15 Misc3d 1116[A], at *1-6 [Sup Ct, Westchester County 2007]). There, the petitioner, the alleged incapacitated person’s daughter and duly appointed Temporary Personal Needs Guardian, made an application for the annulment of her eighty-nine year-old mother’s marriage to her fifty-seven year-old chauffeur (see id.).  

At an evidentiary hearing, Westchester County Supreme Court Justice Peter J. Rosato heard testimony from, among others, the alleged incapacitated person’s physician, which established that she suffered from severe dementia, among other ailments, and could not understand any marriage ceremony; from the alleged incapacitated person, which demonstrated that she knew her alleged spouse, but could not remember his last name or any marriage to him; and from the alleged incapacitated person’s daughter, which suggested that the alleged spouse concealed the “marriage” from her, evidenced the fact that the alleged spouse was her mother’s chauffer, not her friend, and flatly contradicted the alleged spouse’s claim that he had lived with the incapacitated person for more than a decade (see id.). Justice Rosato also heard testimony from the alleged spouse which demonstrated that the first time he publicly disclosed the marriage was on an immigration application to have his daughter admitted to the United States from Ecuador; that he had been collecting thousands of dollars in rent from the tenants of property owned by the alleged incapacitated person; and that he had previously been arrested for violating a temporary restraining order that prohibited him from having contact with the alleged incapacitated person (see id.).

Based upon the testimony and other evidence before the court, Justice Rosato granted the petitioner’s application for an annulment of the marriage between her mother and the chauffer (see id.). In doing so, Justice Rosato explained that “[i]t [was] abundantly clear, on the evidence adduced upon the hearing held herein, that the [alleged incapacitated person] did not possess the requisite mental capacity to marry” (id.). Justice Rosato also found that the marriage was a product of fraud arising from the purported spouse’s desire to gain entry into this country for his daughter who was living in Ecuador until after the marriage (see id.). Accordingly, Justice Rosato granted the petitioner’s application to annul the marriage (see id.).

Of course, an annulment in the context of an Article 81 proceeding is only feasible where the relatives of an allegedly incapacitated person are aware of the marriage prior to the person’s death. Where the marriage is concealed until after the person dies, however, other remedies may exist outside the context of Article 81 (see Jaclene D’Agostino, “Appellate Division Cites Equitable Factors In Denying Entitlement To Elective Share”)

Two years ago, in “Tales from the Crypt: Disposing of Human Remains in New York”, I wrote that: “[i]n New York, the disposition of remains is presumptively governed by [Public Health Law ] section 4201; and that “[a]bsent a valid written instrument appointing an agent for that purpose, section 4201 sets forth which individuals shall have priority to make decisions concerning the disposition of remains” (see “Tales from the Crypt: Disposing of Human Remains in New York”). While those statements remain true today, a recent decision by Nassau County Supreme Court Justice Joel K. Asarch addresses the extent to which a decedent’s intent governs the disposition of his remains where surviving family members have expressed conflicting views on the issue and the individual who has priority to make the decision seeks to dispose of the decedent’s remains in a manner that is inconsistent with the decedent’s expressed intentions (see Matter of Grace D., 922 NYS2d 914 [Sup Ct, Nassau County 2011]).

Although “the common-law right of sepulcher gives [a decedent’s] next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial” (Melfi v M. Sinai Hosp., 64 AD3d 26, 31 [1st Dept 2009]), Public Health Law section 4201 “sets forth a prioritized list of [individuals] who shall presumptively have the right to direct the disposition of a decedent’s remains” (see Maurer v Thibeault, 20 Misc3d 631, 632 [Sup Ct, Cortland County 2008]; Public Health Law § 4201). At the top of the list is an agent appointed in a written instrument that is duly executed in accordance with section 4201 (see Public Health Law § 4201). Absent such a written instrument, the decedent’s surviving spouse, surviving domestic partner, surviving children who are eighteen years of age or older, and surviving siblings who are eighteen years of age or older, among others, in descending order, shall have priority (see id.). No matter who ultimately has priority, however, the individual charged with making a decision concerning the decedent’s final resting place must do so in a manner that is consistent with “the moral and individual beliefs and wishes of the decedent” (id.[c]).

In Matter of Grace D., the decedent’s surviving sister and niece were at odds as to how to dispose of the decedent’s remains (see Grace D., 922 NYS2d at 915-17). On the one hand, the decedent’s sister sought to have the decedent’s remains cremated and transported to her home in Vermont, where the decedent experienced artistic and musical inspiration during his life (see id.). Although she acknowledged that the decedent never expressed any intention to be cremated, the sister explained that, upon her death, she wished to be cremated and to have the decedent’s ashes combined with her cremains (see id.).

On the other hand, the decedent’s niece expressed her desire that the decedent be buried, as he intended, in the Catholic cemetery burial plot that he had purchased for himself thirty-five years before meeting his maker (see id.). The niece testified that the decedent “was a religious man, who served as the Choir Director at a local church for several decades, and expected that he would be buried in the customary garb of a Knight of the Order of the Holy Sepulchre of which he was a member” (see id.).

Noting that the decedent’s Last Will and Testament did not indicate his desire for the disposition of his remains; that there was no duly appointed agent to decide that issue; and that the decedent was survived by two sisters, including the one who sought to have his remains cremated, Justice Asarch found that the sisters would have statutory priority over all other surviving heirs to determine where the decedent’s final resting place would be (see id.). However, Justice Asarch also explained that since the decedent left a clear indication as to his wishes by purchasing a burial plot and paying for its permanent care, the court was bound to respect the decedent’s intentions (see id.). Justice Asarch, therefore, ordered that the decedent’s remains be buried in his cemetery plot, not cremated, as his sister, but not the decedent, wished (see id.).

In sum, a decedent’s testamentary intent is the paramount concern in cases concerning the disposition of human remains. To the extent that the decedent’s wishes can be ascertained, they must be honored by the decedent’s surviving relatives, most especially those who have priority to decide where the decedent’s final resting place will be.