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.


With a specific statute (Domestic Relations Law §236(3)) mandating that pre-nuptial agreements must be acknowledged, and with a specific statutory form of acknowledgment (Real Property Law §309-a(1)), it is surprising that there has been so much litigation over missing or defective acknowledgements and whether they can be cured after the fact.

In Matter of Koegel, 2018 NY Slip Op 00833 (2d Dept 2018), recently decided by the Appellate Division Second Department, husband died in 2014. Surviving spouse filed a Notice of Spousal Election under EPTL 5-1.1-A.   The estate petitioned to set aside the right of election on the basis of a waiver contained in a pre-nuptial agreement. The spouse moved to dismiss claiming that the acknowledgment on the agreement was invalid in that it omitted the standard language contained in the statutory form to the effect that the signers were known to the respective notaries.

On the motion, each notary submitted an affidavit to the effect the he “did not have to provide me with any identification of who he was because he was well known to me at the time.” The Second Department affirmed the decision of the court below that the defect could be remedied, distinguishing the case from Matisoff v Dobi, 90 NY2d 127 (1997) where the agreement had not been acknowledged at all and Galetta v Galetta, 21 NY3d 186 (2013) where the agreement was acknowledged but defective in the same respect as in this case, but the notary did not know the decedent and although he could describe his usual procedure, could not categorically swear that he took the steps to identify the party acknowledging the agreement in this instance.

In 2010, the Appellate Division, Second Department, made it clear that principles of equity grounded in rules of forfeiture can adversely impact a surviving spouse’s entitlement to an elective share. In Campbell v. Thomas, 73 AD3d 103 (2d Dept 2010),  the Appellate Division rendered a decision of first impression when it denied the right of election asserted by the decedent’s surviving spouse based on the equitable principle that a party may not profit from his or her own wrongdoing.  In Matter of Berk, 71 AD3d 883 (2d Dept 2010), the Appellate Division adhered to the foregoing principles when it reversed a decree of the Surrogate’s Court, Kings County, which granted the petitioner, the surviving spouse of the decedent, summary judgment determining the validity of her right of election against the decedent’s estate. Following the 2010 opinion in Matter of Berk, the case continued to wind its way through the Surrogate’s Court as it headed towards trial.

Recently, the Appellate Division, Second Department, had the opportunity to readdress the parties in Matter of Berk, and provide practitioners with further instruction on the issues impacting the claimed elective share. Specifically, the Court modified an order of the Surrogate’s Court, Kings County (Johnson, S.) 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 (see Matter of Berk, 133 AD3d 850 [2d Dept 2015]).

As readers may recall, the underlying proceeding involved a petition by the surviving spouse of the decedent for a determination of the validity and effect of her exercise of her right of election against his estate pursuant to EPTL 5-1.1-A.  In their answer, the appellants, the executors of the estate, asserted as an affirmative defense that the decedent was incompetent to enter into a marriage, that the petitioner knew that he was incapable of entering into a marriage, and that the petitioner had exercised undue influence over the decedent to convince him to marry her.

As stated, on a prior appeal, the Appellate Division, Second Department, reversed an order 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; that is, by marrying the decedent knowing that he was mentally incapable of consenting to a marriage for the purpose of obtaining pecuniary benefits from his estate. The Court further ruled that the appellants’ counterclaims alleging undue influence were improperly dismissed.

On remitter to the Surrogate’s Court, Kings County, the parties submitted proposed statements of the issues to be determined at trial, as well as proposals concerning the burden and quantum of proof on the issues. In the order appealed from, the Surrogate’s Court limited the issues for trial to whether the decedent was mentally incapacitated and incapable of consenting to his marriage to the petitioner, and if so, whether the petitioner took unfair advantage of him by marrying him for the purpose of availing herself, as his surviving spouse, of his estate at death. The Surrogate further ruled that the appellants/executors had the burden of proof on the issues by clear and convincing evidence. The Surrogate did not include the issue of undue influence as a matter to be determined.  The executors appealed.

The Appellate Division opined that the issue of whether the petitioner had forfeited her elective share under the circumstances raised by the proceeding was based on the equitable doctrine that the petitioner should not profit from her own wrongdoing. Where a claim of wrongful conduct is made, the parties asserting same, i.e., the appellants, have the burden of proving the wrongdoing by a preponderance of the evidence.  The Court further held that evidence of a confidential relationship between the petitioner and the decedent, by virtue of their marriage, was not, in itself, proof of the petitioner’s wrongdoing, and, as such, did not shift the burden of proof to the petitioner to prove otherwise.

Additionally, the Court held that an alternative ground for forfeiture of the right of election was whether the petitioner exercised undue influence upon the decedent to induce him to marry her. Again, the Court determined that the appellants had the burden of proof on this issue by a preponderance of the credible evidence.

The Berk matter is now primed for trial. Stay tuned for what is sure to be an instructive outcome.

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]).

My most recent blog post, titled No Sex, No Elective Share?, discussed a recent case involving allegations of constructive abandonment as a basis for disqualifying a surviving spouse from receiving an elective share. In that post, I also discussed, briefly, actual abandonment as a basis for disqualification. Unlike constructive abandonment, actual abandonment requires proof that the surviving spouse lived apart from the decedent, without consent.

In early January, the Appellate Division, Third Department, decided Matter of Yengle, 2014 NY Slip Op 00156 (3d Dept, Jan. 9, 2014). In that case, the decedent’s sister sought to disqualify the respondent as the decedent’s surviving spouse, and to remove her as administrator of the decedent’s estate, on the ground that she had abandoned the decedent. The Appellate Division determined that the Surrogate’s Court improperly granted the respondent’s motion for summary judgment dismissing the petition.

It appears to have been undisputed that the decedent and the respondent, although legally married, lived separately for about a decade. The respondent, according to the Appellate Division, made out a prima facie case for summary judgment by offering proof that that she and decedent resided together for some time following their marriage, during which the decedent drank heavily and abused her, physically and mentally, occasionally requiring police intervention; the decedent would leave their home for periods of time and the respondent ultimately suggested that they live separately; following their separation, the decedent and the respondent mostly communicated by telephone every couple of months and saw each other occasionally; and the decedent was aware that the respondent had two affairs during their marriage, and was not angry. This evidence, according to the Court, was sufficient to meet the respondent’s threshold burden on her summary judgment motion, thus shifting the burden to the petitioner to demonstrate the existence of a question of fact for trial.


The Appellate Division determined that the petitioner did, indeed, raise an issue of fact for trial. The petitioner’s testimony casted doubt onto respondent’s allegations concerning the decedent’s alcoholism and her allegations of abuse. The court noted that the respondent never pursued criminal charges against the decedent, initiated a family offense proceeding, or otherwise sought an order of protection against the decedent as a result of the alleged abuse.  The petitioner further testified that she knew, based upon her conversations with the decedent and her observations of his emotional distress, that he wanted to be with the respondent and would not have consented to her living apart from him.  The record also contained cards that the decedent gave to the respondent, in which he expressed his love for her. Finally, the respondent testified that the decedent had asked her to return to him, but she allegedly refused to do so because of his alcohol abuse. This evidence, according to the Appellate Division, raised a triable issue of fact concerning the decedent’s consent to the respondent’s absence. (Notably, much of this evidence would be potentially excludable at trial, pursuant to the Dead Man’s Statute (CPLR 4519), but nonetheless could be considered on a motion for summary judgment.)


As the Appellate Division noted in its decision, quoting authority, “[t]he question of abandonment is one of fact, and often a close one.” Summary judgment in such a case will rarely be appropriate. The party claiming abandonment ultimately bears the burden of proof, and that burden is a heavy one. Evidentiary hurdles, moreover, may prove insurmountable. 

A recent decision emanating from the Surrogate’s Court, Kings County, Matter of Nichols, N.Y.L.J., Nov. 15, 2013, p.40, addresses the rarely litigated issue of constructive abandonment (i.e., a spouse’s unjustified refusal to engage in sexual relations) as a basis for disqualifying a surviving spouse from receiving an elective share. This case teaches that a claim of constructive abandonment must be supported by more than hearsay testimony in the record that the decedent told his grandson, on a single occasion, that “the dingbat hasn’t given me any in years.”

Perhaps because of the difficulties in proving — post-mortem — a decedent’s sexual activity, disqualification cases grounded in allegations of constructive abandonment are few and far between (see, e.g., Matter of Reisman, N.Y.L.J., Feb. 8, 2000, p.33, col. 3 [Sur Ct, Nassau County 2000]). Constructive abandonment is most often alleged as a grounds for separation or divorce, in the context of matrimonial law. The disqualification statute — EPTL § 5-1.2 — provides for the disqualification of a surviving spouse if “[t]he spouse abandoned the deceased spouse, and such abandonment continued until the time of death”; the statute contains no definition of “abandonment.” In determining whether a spouse is disqualified, courts generally employ the standard used to determine if a party would be entitled to a decree of separation or divorce on the grounds of abandonment under the Domestic Relations Law (see, e.g., Matter of Hama, 39 Misc 3d 429, 435 [Sur Ct, New York County 2012]).


Unlike actual abandonment, which requires proof that the surviving spouse lived apart from the decedent, without consent, constructive abandonment requires no physical separateness. Constructive abandonment is routinely defined as the refusal of one spouse to engage in sexual relations with the other spouse for one or more years, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations (see Davis v Davis, 71 AD3d 13 [2d Dept 2009]; Gianis v Gianis, 67 AD3d 963 [2d Dept 2009]). A third type of abandonment, abandonment by lock out, “occurs when one spouse changes the lock on the entrance door of the marital abode, or the place where he or she is living, thus effectively excluding the other spouse, unless the act is justified” (Soldinger v Soldinger, 21 AD3d 469, 470 [2d Dept 2005]).


Matter of Nichols involved allegations of all three types of abandonment. The decedent was survived by his spouse, Edlyn, and two adult children of a prior marriage. Edlyn filed a notice of election with the Court, followed by a petition to determine the validity and effect of her election. She alleged that the decedent had made no provision for her, and that at the time of his death the decedent held certain real and personal property, including real property, jointly with his children. The children objected to the petition, alleging disqualification on the grounds, inter alia, of abandonment, constructive abandonment, and abandonment by lock out. The parties could not resolve the matter informally and Edlyn ultimately moved for summary judgment seeking dismissal of the objections and determining the validity of her right of election.


While there were differences in their testimony, both children, and the decedent’s grandson, testified that the decedent and Edlyn lived separate and apart from each other, the decedent sleeping in a hospital bed on the first floor of the real property, and Edlyn living with her adult disabled daughter in a separate, locked residence on the second floor of the property. 


However, fatal to the children’s abandonment claim, according to the Court, was the absence of evidence that the separation within the property was without justification or without the decedent’s consent. The Court credited the children’s own testimony regarding the impact of the decedent’s failing health on his mobility.


The Court likewise disposed of the claim of abandonment by lock out, finding an absence of evidence that the decedent could not enter Edlyn’s locked living quarters when access was required.


Addressing the children’s claim of constructive abandonment, the Court noted that such exists when “the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continues for at least one year” (id.,quoting Lyons v Lyons, 187 AD2d 415, 416 [2d Dept 1992]). The “refusal must be unjustified, willful, and continued despite repeated requests for continued conjugal relations” (id.). 


To establish that Edlyn denied the decedent his conjugal rights in the final years of his life, the children relied solely on the testimony of the decedent’s grandson, Donnell, that, on a single occasion, the decedent told him that “the dingbat hasn’t given me any in years.” The children conceded they never discussed with the decedent his sexual relationship with Edlyn. (Although, as the Court noted in a footnote, one child testified “that the decedent slept alone, on the first floor, in a twin-sized hospital bed, and[opine[d] that it was spacious enough for two people to share, implying that [Edlyn] would have been able to sleep in the hospital bed with the decedent if she so desired.”) 


The Court determined that the “evidence” was insufficient to raise a triable issue of fact regarding constructive abandonment, noting that “[t]he respondents rely on a single statement by the decedent to a third party, on some unspecified date, that the movant and the decedent had not engaged in marital relations for an unknown period of time.” Quoting Lyons, an Appellate Division matrimonial case, the Court noted that, “[p]roof that one spouse, in response to a single request, refused to engage in sexual relations, in the absence of proof that the other spouse thereafter repeatedly and unsuccessfully requested a resumption of sexual relations, is insufficient” to warrant a finding of constructive abandonment. The Court noted that the children offered no evidence that the decedent ever requested that Edlyn resume marital relations, even assuming such relations had ceased, or that she refused any such request.

It is likely that “constructive abandonment” spousal disqualification cases will continue to be a rare breed. While determining such cases will almost always involve disputed factual issues, a court will require the party seeking disqualification – the party with the burden of proof – to offer substantial evidence in order to proceed. Parties seeking to disqualify a surviving spouse should be mindful that, as the Nichols court noted, the “statutes granting to a spouse a right of election are remedial and should be construed in the interest of the surviving spouse to give . . . her the broadest possible protection” (quoting Matter of Bartley, 83 Misc 2d 672, 679 [Sur Ct, Cattaraugus County 1975]).

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.

Over the past several months, the Appellate courts have been actively engaged in determining issues pertinent to the field of trusts and estates and providing guidance to the Surrogate’s Court practitioner. The following is a synopsis of but a few of the decisions rendered.

Discovery Proceedings

In Matter of Delgatto, 2011 NY Slip Op 02667, the Appellate Division, Second Department affirmed an order of the Surrogate’s Court, Kings County (Johnson, S.), which denied the petitioner’s motion for summary judgment in a proceeding pursuant to SCPA 2103 to recover real property. The petitioner, who was the administrator cta of the estate, alleged that the decedent transferred the subject property to a revocable trust for the benefit of his caregiver, as a result of undue influence. The Court noted that several of the exhibits submitted by the petitioner were not in admissible form, i.e. unsigned and unattested transcripts, and thus could not be utilized in support of the motion. Further, the Court opined that the admissible evidence submitted by the petitioner failed to establish the petitioner’s prima facie entitlement to judgment as a matter of law.

The Elective Share

On April 26, 2011, the Appellate Division, Second Department, affirmed the order of the Surrogate’s Court, Kings County (Johnson, S.), which granted the petitioner’s motion for summary judgment determining her right to an elective share of the decedent’s estate. In Matter of Atiram, 2011 NY Slip Op 03593, the Court found that the petitioner had established that she married the decedent in 1952 and that they remained legally married until the date of the decedent’s death. The Court concluded that the objectant had failed to raise any triable issue of fact as to whether the petitioner was disqualified on the grounds of abandonment, or equitably estopped from taking an elective share.

Compulsory Accounting

In Matter of Faggen, 2011 NY Slip Op 01413, the Appellate Division, First Department affirmed an order of the Surrogate’s Court, New York Count (Webber, S.), which dismissed a petition for a compulsory accounting by the co-fiduciaries of the estate of the decedent. The record revealed that the decedent was the fiduciary of the estate of her late husband, who was the executor of the estate which was the subject of the proceeding. The Court held that a compulsory proceeding by fiduciaries thrice removed from the subject estate was not authorized by the provisions of SCPA 2207.

Proceeding Against a Fiduciary to Recover Property

Before the Appellate Division, Third Department in Matter of Curtis, 2011 NY Slip Op 027773, was an appeal from an order and decree of the Surrogate’s Court, Rensselaer County (Hummel, S.), which partially granted the petitioner’s application to compel the delivery of property from the fiduciary, and from a decree of that court which judicially settled the fiduciary’s accounting. The parties were the decedent’s daughters and co-executors of her estate. Prior to the decedent’s death, the decedent moved in with one of her daughters, who became her attorney-in-fact. Acting in this capacity, the daughter transferred assets of the decedent into her name.

After the decedent’s death, the decedent’s other daughter compelled her sister to account as attorney-in-fact and as co-executor of the estate. Both accountings were submitted and objections were filed. At the bench trial, the petitioner only pursued objections to the respondent’s accounting as attorney-in-fact, alleging that the transfers of assets by the decedent were the result of self -dealing and breach of fiduciary duty. The Surrogate’s Court disagreed, concluding that the respondent’s actions were undertaken with the express consent of the decedent, who was found competent at the time. The Appellate Division affirmed.

The Court held that while there was a presumption that the services provided by respondent’s husband in connection with the sale of certain realty were gratuitous in nature, that presumption was sufficiently rebutted by the testimony of the respondent and her husband that the decedent agreed to pay for her son-in-law’s services. To this extent, the Court deferred to the Surrogate’s assessment of the witnesses’ credibility, and expressly noted that the petitioner put forth no evidence to contradict the evidence presented.

Moreover, the Court found that the transfer of the decedent’s investment account to the respondent, and respondent’s inclusion as a mortgagee upon the sale of the decedent’s home constituted valid gifts, albeit made by the respondent as the decedent’s attorney-in-fact. The Court relied on the language of the power of attorney which authorized the making of the gifts in issue, as well as the testimony of the respondent who stated that the decedent was present when the subject transactions occurred.


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

A recent decision emanating from the Kings County Surrogate’s Court provides another interesting application of the rules on entitlement to an elective share. In Matter of Atiram, 2009 NY Slip Op 52356(U), the petitioner sought a determination as to her right of election under EPTL 5-1.1A. She had married the decedent in 1952, but thirty-eight years later, the couple participated in a Jewish religious divorce under the supervision of the Rabbinical Alliance of America in New York. The Ministry of Religion of the State of Israel allegedly recognizes this type of divorce. New York, however, does not.

Pursuant to EPTL 5-1.2, a divorce disqualifies an individual from obtaining an elective share when “a final decree or judgment of divorce . . . recognized as valid under the laws of this state [that] was in effect when the deceased spouse died.”    New York does not recognize a rabbinical divorce as a valid termination of a marriage because the laws of this state require divorce by “due judicial proceedings.” In light of this rule, the objectant in Atiram sought a stay of the petitioner’s application pending an Israeli court’s determination of the validity of the divorce by the laws of that jurisdiction which, she argued, would qualify as the requisite “judicial proceeding” for New York. The Court disagreed, and opined that the outcome of the Israeli proceeding was irrelevant to the petitioner’s right of election.


Specifically, the Court held that even if the Israeli court were to ultimately recognize that the decedent and the petitioner had been divorced under the laws of that country, such a determination would not have been in effect upon the decedent’s death. Therefore, because the marriage existed on the date of the decedent’s death, petitioner remained entitled to her elective share (see Matter of Atiram, citing Bennett v Thomas, 38 AD2d 682 [1st Dept 1971]; Matter of Berk, 20 Misc 3d 691 [Sur Ct, Kings County 2008]).