Pursuant to the provisions of EPTL 5-1.1-A, every surviving spouse of a domiciliary decedent is entitled to a statutory right of election. The elective share statute is intended to provide a decedent’s surviving spouse with a requisite minimum amount of his/her estate. While a surviving spouse may be disqualified from an elective share under any one of the circumstances enumerated in EPTL 5-1.2, the Surrogate’s and Appellate Courts have crafted a further ground for forfeiture when equity so requires. This was the result achieved by the Second Department’s opinion in Campbell v. Thomas, 73 AD3d 103 (2d Dept 2010), and more recently, by the opinion rendered by the Surrogate’s Court, King’s County, in Matter of Berk, NYLJ, July 2, 2018, p. 31 (Sur Ct, Kings County), discussed below.

In In re Berk, the court held, after trial, that by virtue of her wrongdoing, the decedent’s surviving spouse had forfeited her right of election against his estate. Prior to thihttps://www.nyestatelitigationblog.com/wp-admin/post.php?post=16851&action=edit#edit_timestamps result, the Berk estate had been the subject of two opinions by the Appellate Division, Second Department. In the first, the Court reversed an order of the Surrogate’s Court, Kings County (Johnson, S.) granting summary judgment to the petitioner, finding that there was an issue of fact as to whether the petitioner had forfeited her right of election by her alleged wrongdoing. The Court further ruled that the appellants’ counterclaims alleging undue influence were improperly dismissed. In the second opinion, the Court modified an order of the same court by (1) adding as an issue of fact to be tried the question of whether the petitioner, the decedent’s surviving spouse, exercised undue influence upon the decedent to induce him to marry her for the purpose of obtaining pecuniary benefits from his estate, and (2) replacing so much of the order, as imposed the burden of proof on appellants, the executors of the estate, by clear and convincing evidence, with a provision that placed the burden of proof on appellants by a preponderance of the credible evidence.

At the trial of the matter that followed, the Surrogate’s Court framed three issues to be heard, lodged principally in whether the decedent possessed the requisite mental capacity to marry the petitioner, or alternatively, whether the petitioner unduly influenced the decedent to marry her for her own pecuniary benefit.

On the issue of capacity, the court found the record replete with credible evidence that the decedent suffered from both physical and mental impairments, and manifested significant hearing loss, and periods of confusion. Additionally, the court noted that on the day prior to his purported marriage to the petitioner, the decedent was unable to accurately complete the marriage license application, and made critical mistakes in the listing of his address, his place of birth, and his mother’s maiden name. Moreover, the court noted that in a photograph taken on his wedding day, the decedent appeared dazed and confused.

The court opined that the standard of capacity for marriage is whether each party to the contract was able to understand the nature, effect, and consequences of his or her actions. Within this context, and based on the “plethora” of credible evidence presented, the court concluded that the decedent was incapable of understanding or consenting to his marriage to the petitioner, and that the petitioner was well aware of his incapacity at the time the marriage was entered. Indeed, in view of the fact that the petitioner was the decedent’s primary caretaker and had ample opportunity to observe him in his daily routine, as well as the fact that she had experience in the medical field, the court found “it impossible to believe that the petitioner did not know of the decedent’s mental incapacity.”

Moreover, after considering the indicia of undue influence including the decedent’s physical and mental condition, the secrecy in which the marriage was entered, the petitioner’s control over the decedent’s daily needs, and her direction over his lifetime affairs as evidenced by the decedent’s handwritten notes that petitioner had apparently dictated, the court held that petitioner had the motive and opportunity to influence the decedent’s actions, and that she actually exercised undue influence over him in procuring their marriage.

Relying on the opinion by the Appellate Division, Second Department, in Campbell v. Thomas, 73 AD3d 103 (2d Dept 2010), the court observed that where a marriage has been wrongfully procured, the statutory right of election which would have emanated from such marriage will be forfeited. Accordingly, based on the record, the court denied petitioner’s request for an elective share of the decedent’s estate.

 

New York’s “slayer rule” essentially provides that if an individual kills another person, he has automatically forfeited any interest he may have had in his victim’s estate.  The rationale is simple – no one should financially benefit from his own crime. 

As we have explained in prior posts, this longstanding rule was never codified in New York, but is a common law principle emanating from the nineteenth century Court of Appeals decision in Riggs v Palmer, 115 NY 506 (1889). There, a grandson who intentionally killed his grandfather to ensure his inheritance, was barred from profiting from his own wrong. 

Applicability of the rule is generally straightforward, but in certain cases, the lines can become blurred — such as in Matter of Edwards, 2014 NY Slip Op 05873 (2d Dept 2014), where the killer sought to inherit from his victim only indirectly, through the estate of the victim’s post-deceased daughter. 

The facts of Edwards are somewhat complex.  Brandon Palladino pleaded guilty to manslaughter in connection with the death of his mother-in-law, Dianne Edwards.  Brandon’s wife, Deanna, was Dianne’s only child, and the sole beneficiary of her estate.  Less than a year after Dianne’s death, Deanna died, intestate, from an accidental drug overdose.  Brandon was Deanna’s sole distributee.  Accordingly, Brandon stood to inherit his victim’s entire estate indirectly, through his wife’s estate.

In a 2012 decision, Suffolk County Surrogate John M. Czygier, Jr., opined that the slayer rule should be extended upon equitable principles to prohibit Brandon from inheriting in this manner.  Recently, the Appellate Division, Second Department, affirmed. 

Acknowledging that this was a case of first impression, the Second Department was guided largely by its decision in Campbell v Thomas, 73 AD3d 103 (2d Dept 2010).  There, the court held that a surviving spouse forfeited her elective share by her own wrongdoing, having knowingly taken advantage of the decedent in a deathbed marriage for her own pecuniary gain. Although none of the statutory disqualification provisions of EPTL 5-1.2 applied to that situation, the court relied upon principles of equity in making its determination.

The Second Department also relied upon an Illinois case that presented facts analogous to those in Edwards.  In In re Estate of Vallerius, 259 Ill App 3d 350 (5th Dist 1994), the decedent was murdered by two of her grandsons.  Their mother post-deceased mere months later, leaving them as her only heirs.  The Illinois court held that the grandsons could not indirectly benefit from their own crime by inheriting the murdered grandmother’s estate through their mother’s estate, and explained that an intervening estate “should not expurgate the wrong of the murderer or thwart the intent of the legislature that the murderer not profit by his wrong.” 

Notably, in upholding Surrogate Czygier’s extension of the slayer rule, the Second Department rejected arguments that (1) Deanna’s inheritance vested immediately in her upon her mother’s death, allowing her to do what she wished with the property, and (2) extension of the slayer rule would raise “a host of enforceability problems” — for example, if the intervening estate resulted from a death that occurred a decade after the wrongful death or murder. The Court explained that it was unpersuaded by hypothetical scenarios and noted that the rule, as extended, would be applied on a fact-specific basis. 

In sum, the Second Department opined that Edwards was on point with both Campbell and Vallerius in that there was “a clear causal link between the wrongdoing and the benefits sought.”  Accordingly, it affirmed the Surrogate’s Court’s decision to exercise its equitable powers in extending the slayer rule to this case (see SCPA 201[2]).

This month, the Second Department has issued two important decisions on entitlement to an elective share when a marriage occurred while the decedent lacked the requisite mental capacity to enter into a marital contract. Matter of Berk and Campbell v Thomas were both cases in which a caregiver secretly married the incapacitated individual for whom she worked, in an effort to manipulate a testamentary scheme for her own financial gain.   Although the statutory limitations on disqualification from the right of election did not infringe upon the “surviving spouses’” rights to inherit from their respective “husbands” (see EPTL §5-1.2), the Appellate Division followed equitable principles in determining the parties’ respective rights.

In Matter of Berk, 20 Misc 3d 691 (Sur Ct, Kings County 2008), summary judgment was granted to the “surviving spouse” on the issue of her entitlement to an elective share, despite the suspicious circumstances surrounding her marriage to the decedent.  A discussion of the lower court’s decision can be found in a prior entry. To briefly recap, the decedent’s “spouse” had been the decedent’s live-in caretaker since 1997. By the time the two secretly married in 2005, he had become completely dependent upon her. In fact, the marriage occurred almost exactly one year prior to his death, when he was 99 years old (she was 47), was suffering from dementia, and had been deemed by a physician to be incapable of entering into binding contracts or managing his social affairs.   The lower court dismissed these facts as irrelevant for purposes of determining entitlement to the right of election.  Rather, it limited its inquiry to (1) whether the petitioner was the decedent’s surviving spouse upon his death, i.e., whether the marriage was void under the circumstances; and (2) whether any of the disqualifying factors of EPTL §5-1.2 had been met.  Because the petitioner demonstrated that she was the surviving spouse at the time of the decedent’s death, as the marriage was potentially voidable but not void according to DRL §7, the Surrogate held that she was entitled to judgment as a matter of law.  Indeed, the result of the determination that the marriage was voidable, not void, foreclosed inquiry into the validity of the marriage because no steps were taken to void the marriage during the decedent’s lifetime.  But under the circumstances, where the marriage in issue had been kept a secret by the petitioner while the decedent was alive, no such steps could possibly have been taken.

In overturning the Surrogate’s decision, the Second Department recognized the existence of “a triable issue of fact as to whether the petitioner had forfeited the statutory right of election” on equitable grounds. In particular, relying on Campell v Thomas (2010 NY Slip Op 02082 [2d Dept 2010]), the Court stated that the estate had presented evidence that could prove the petitioner was aware of the decedent’s incapacity and inability to consent to marriage, and deliberately took “unfair advantage . . . by marrying that person for the purpose of obtaining pecuniary benefits that becomes available by virtue of being that person’s spouse, at the expense of that person’s intended beneficiaries" (Matter of Berk, 2010 NY Slip Op 02139 [2d Dept 2010]). Thus, the order was modified, denying the petitioner’s motion for summary judgment, and reinstating counterclaims.

In sum, while the lower court’s holding was based upon statutory authority, equity was the cause for its reversal. The Appellate Division explained its rationale for this determination in further detail in its simultaneous decision in the very similar case of Campbell v Thomas.

In Campbell, the decedent was suffering from severe dementia and terminal cancer when he and his short-term caregiver, Nidia, who stayed with the decedent while his daughter went on vacation, were married.   Immediately thereafter, while the decedent’s daughter was still away, Nidia transferred the decedent’s Citibank account from the decedent’s name to the couple jointly, and named herself the sole beneficiary of his retirement account. 

Continue Reading Appellate Division Cites Equitable Factors In Denying Entitlement to Elective Share