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.
Continue Reading THE CHALLENGE OF FINDING ADMISSIBLE EVIDENCE IN ABANDONMENT PROCEEDINGS
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.
Continue Reading Wrongdoer Deprived of Elective Share
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.
Continue Reading Waiver of Right of Election: Correction of Defective Acknowledgment
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.
Continue Reading Proof of Wrongdoing and the Right of Election
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. Applicability of the rule is generally straightforward, but in certain cases, the lines can become blurred — such as in Matter of Edwards, where the killer sought to inherit from his victim only indirectly, through the estate of the victim’s post-deceased daughter. Jaclene D’Agostino discusses the decision in our latest entry.
Continue Reading Appellate Division Upholds Equitable Extension of Slayer Rule
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.
Continue Reading Appellate Division: Issue of Fact Prevents Summary Disposition of Abandonment Allegations
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.
Continue Reading No Sex, No Elective Share?
In our latest entry, Rob Harper discusses Surrogate Czygier’s decision in Matter of Newman, a case addressing the validity of an elective share.
Continue Reading Unlawful Marriages and the Right of Election
This week, Ilene S. Cooper provides a summary of recent decisions emanating from the appellate courts, which address a range of topics pertinent to the estate practitioner.
Continue Reading A View from the Appellate Bench
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.
Continue Reading Appellate Division Cites Equitable Factors In Denying Entitlement to Elective Share