In this Probate case, Petitioner moves for summary judgment on her entitlement to take an elective share of the decedent’s estate pursuant to EPTL 5-1.1-A. Petitioner filed a petition seeking a decree determining that she is entitled to take her elective share against the estate, and that her notice of election was properly served, filed and recorded as provided by law.
The respondents filed a verified answer alleging various affirmative defenses1 and counterclaims seeking to: (1) have the alleged marriage between the decedent and petitioner deemed null and void ab initio, and to annul the marriage nunc pro tunc; (2) dismiss the petition in its entirety; (3) vacate petitioner’s notice of election; and (4) award the estate damages for the costs of this proceeding. Alternatively, if petitioner is not disqualified as a surviving spouse, they seek an award of compensatory damages equal to the elective share, plus interest and costs of the proceeding for the loss to the estate resulting from petitioner’s fraudulent conduct.
The decedent died on June 16, 2006, survived by two sons, the coexecutors herein, and four grandchildren from a prior marriage. Petitioner served as the decedent’s caretaker during the last decade of his life. The decedent’s will dated July 10, 1982, was admitted to probate on October 30, 2006. Letters testamentary were issued to the nominated coexecutors on that date. The decedent’s children and grandchildren were the sole beneficiaries under the will.
Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law. The court’s burden is not to resolve issues of fact, but merely to determine if such issues exist. It is a drastic remedy that will only be granted where there is no triable issue of fact. The court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of their day in court.
The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make out a prima facie case requires denial of the motion regardless of the sufficiency of the opposing papers. If however a prima facie case is made, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial by tendering evidentiary proof in admissible form.
Estates, Powers and Trusts Law § 5-1.1-A allows a surviving spouse a personal right of election to take a share of a decedent’s estate when the parties are in fact married on the date of the decedent’s death. This statute provides that a husband or wife is a surviving spouse within the meaning of EPTL 5-1.1-A, unless it can be established satisfactorily to the court that any of the grounds for disqualification contained in EPTL 5-1.2 exist.
Petitioner in her affidavit in support of the motion states that she married decedent on June 17, 2005, and remained married to the decedent until the time of his death, annexing as exhibit A, a “Certificate of Marriage Registration” which was filed with the City Clerk’s Office of the City of New York.
Respondents argue that this motion is premature as no discovery has been conducted as grounds exist for a postdeath annulment of the marriage. In support thereof respondents proffer a voluminous submission of documents and affidavits to demonstrate to the court that the decedent did not have the mental capacity to understand the nature, effect and consequences of the marriage or to enter into a marriage contract.
An annulment may be granted if one of the parties was incapable of consenting to the marriage for want of understanding or comprehending the significance of the decision to marry. A postdeath action for annulment may be maintained provided the person(s) seeking same establishes an interest to void the marriage. However the granting of a postdeath annulment herein would not defeat petitioner’s right of election as a surviving spouse as petitioner’s right to elect against the estate became fixed and unalterable upon decedent’s death.
As a surviving spouse’s right to elect against a will is not disturbed even if the marriage is annulled postdeath, any claim that this motion is premature as required discovery has yet to be conducted is of no moment and does not impact on this motion seeking a determination of petitioner’s right to take her elective share under EPTL 5-1.1-A. The only grounds to disqualify a surviving spouse are those contained, as indicated earlier, in EPTL 5-1.2, none of which are alleged herein.
Alternatively respondents argue that if the marriage cannot be voided petitioner should be “equitably estopped” from claiming that she is the decedent’s spouse, since as his caretaker she stood in a “fiduciary” relationship with the decedent and the family. By keeping silent about the marriage, petitioner abused the trust accorded her by the family to their detriment. Therefore, respondents argue, petitioner’s misrepresentations about her marital status, or her failure to disclose her marital status in the face of an alleged duty to do so creates both legal and factual issues warranting denial of the motion.
The court finds respondents’ argument unavailing as there is no legal authority for, nor have respondents cited any for, the proposition that petitioner had a legal duty to inform anyone concerning her marital status, and that failing to do so she is estopped from claiming to be decedent’s spouse.
Finally, respondents argue that the motion should be denied based on petitioner waiving her right to elect against decedent’s will. They draw the court’s attention to a “handwritten note” written, signed and produced by petitioner which states in pertinent part, “I like the people knows that this marriage is not for money.
While acknowledging that this handwritten note does not meet the statutory requirements of EPTL 2-1.11, respondents’ argue that it should be treated as a common-law renunciation wherein petitioner renounced her rights to any interest she may have had in the decedent’s estate and in so doing waived her right to elect against the decedent’s will.
While it may be correct that EPTL 2-1.11 does not abridge the right of any person to renounce any interest or property under common law, under common law one could only renounce testamentary dispositions. The right of election by a surviving spouse is not a testamentary disposition; quite the opposite its purpose is to prohibit a decedent from disinheriting a surviving spouse.
For petitioner to have waived her right of election, something altogether different than a renunciation, there must be compliance with EPTL 5-1.1-A (e) (2), which provides that “a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property.”
In conclusion respondents argue that to give this “sham” marriage any validity would be to endorse petitioner’s actions and create a rule that will allow future caretakers of the elderly an easy road to gain unlawful inheritance rights.
In this estate valued in excess of five million dollars, the court is cognizant of petitioner’s former status as caretaker of the decedent who was 99 years of age, while petitioner was 47 years of age when they married; that petitioner did not disclose that she had married the decedent until after he died; and that there are issues concerning his capacity to have entered into the marriage.
Based on the foregoing, it is the finding of this court that there are no issues of fact concerning petitioner’s status as the decedent’s lawful spouse on his date of death or her entitlement to exercise the right of election pursuant to EPTL 5-1.1-A.
Petitioner’s motion for summary judgment is granted. Without passing on the merits thereof, respondents’ counterclaims sounding in annulment and for an award of compensatory damages based on petitioner’s alleged fraudulent conduct are dismissed without prejudice.
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