New York Law Allowing Gay Marriage and Its Effect on Estate Planning

The New York Marriage Equality Act was signed into law on June 24, 2011 and recognizes the right of same-sex couples to marry in New York State. In this Analysis, Professor William LaPiana discusses the impact of the new act on estate planning for same-sex couples under New York and federal law.

He writes:

Effects of the Statute

Property Law


     The survivor of a same sex marriage will inherit from the deceased spouse under EPTL 4-1.1(a)(1) (the first $50,000 and one half of the residue if the decedent is also survived by issue) and (a)(2) (all of the probate estate if the decedent is not survived by issue). That means, of course, that if the decedent is not survived by issue and the surviving spouse is the sole distributee, the decedent's will can be admitted to probate on the wavier and consent of the surviving spouse alone. The survivor will also be entitled to the exempt property provided by EPTL 5-3.1 and to the right of election under EPTL 5-1.1-A, discussed in greater detail below.

     The new statute does not, however, overrule Matter of Cooper [enhanced version available to subscribers], which held that the survivor of a homosexual relationship does not have elective share rights, no matter how long-standing the relationship and the degree of commitment of the partners. The holding of the case presumably still applies to the survivor of any unmarried same-sex couple, and perhaps to the survivor of an unmarried opposite-sex couple.

Creation of Joint Tenancies and Tenancies by the Entirety

     EPTL 6-2.2 contains rules for the interpretation of conveyances to more than one person. The general rule is that a disposition of property to two or more persons creates in them a tenancy in common unless the resulting estate is expressly declared to be a joint tenancy. A disposition of real property (or on or after January 1, 1996 of shares of stock in a cooperative housing corporation together with the proprietary lease) to "a husband and wife," however, creates in them a tenancy by the entirety unless expressly declared to be a joint tenancy or a tenancy in common. Even though the statute refers to "husband and wife" both the statement of legislative intent in Chapter 95 of the Laws of 2011 and DRL Section 10-a make it clear that the same rule applies to any married couple even though EPTL 6-2.2 has not been amended to remove the gendered language.

     EPTL 6-2.2(b)(d) makes a disposition of real property (or on or after January 1, 1996 of shares of stock in a cooperative housing corporation together with the proprietary lease) "to persons who are not legally married to one another but who are described in the disposition as husband and wife" creates in them a joint tenancy unless expressly declared to be a tenancy in common. DRL Section 10-a also applies to this use of gendered language in relation to marriage, even though the provision applies to two persons mistakenly described as married to each other. Once the Marriage Equality Act is in effect, a disposition to two men or to two women mistakenly described as "spouses" or as "married to each other" will create a joint tenancy between them.

(footnotes omitted)

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