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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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.


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