Some of the most interesting estate litigation issues arise in proceedings to determine a surviving spouse’s entitlement to an elective share, particularly when there are claims of abandonment. Bret Cahn discusses certain abandonment decisions and the evidentiary issues raised therein, in our latest post.
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elective share
Wrongdoer Deprived of Elective Share

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. 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. Such was the result in Matter of Berk, recently decided by the Surrogate’s Court, Kings County. Ilene Cooper discusses the decision in our latest entry. …
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Waiver of Right of Election: Correction of Defective Acknowledgment

With a specific statute mandating that pre-nuptial agreements must be acknowledged, and with a specific statutory form of acknowledgment, it is surprising that there has been so much litigation over missing or defective acknowledgements and whether they can be cured after the fact. The Second Department recently addressed this issue in Matter of Koegel. Jack Barnosky discusses the case in our latest entry. …
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Proof of Wrongdoing and the Right of Election

In 2010, the Appellate Division, Second Department, made it clear in two decisions — Matter of Berk and Campbell v. Thomas — that principles of equity grounded in rules of forfeiture can adversely impact a surviving spouse’s entitlement to an elective share. The Second Department recently addressed the Berk matter again, specifically with respect to the issues to be determined and burdens of proof to be imposed at trial. Ilene Cooper discusses the decision in our latest entry.
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Appellate Division: Issue of Fact Prevents Summary Disposition of Abandonment Allegations

Eric Penzer recently discussed a case where constructive abandonment was asserted to disqualify a surviving spouse from an elective share. In our latest entry, Eric addresses a decision regarding actual abandonment as the basis for disqualification, and the hurdles that parties involved with such a claim may face.
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No Sex, No Elective Share?

Constructive abandonment is a rarely litigated basis for denying a surviving spouse his or her elective share, as it is very difficult to prove. In our latest entry, Eric Penzer discusses a recent case addressing the issue.
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Unlawful Marriages and the Right of Election

In our latest entry, Rob Harper discusses Surrogate Czygier’s decision in Matter of Newman, a case addressing the validity of an elective share.
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Appellate Division Cites Equitable Factors In Denying Entitlement to Elective Share

The Second Department has recently issued two decisions that expand the parameters of disqualification from entitlement to the spousal right of election. In Matter of Berk and Campbell v. Thomas, the Appellate Division addressed situations in which the statutory limitations on disqualification failed to render equitable results. Jaclene D’Agostino discusses the decisions in this week’s entry.
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Posthumously Voided Marriage Negates Right of Election

This week, Jaclene D’Agostino discusses a recent decision on an application to determine the validity of an elective share, when the marriage had been declared void by an Article 81 court after the decedent’s death.
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Right of Election Granted Despite Evidence of a Voidable Marriage

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.Continue Reading Right of Election Granted Despite Evidence of a Voidable Marriage