Estate and Elder Law

John G. Farinacci: Abandonment Cases in Surrogate’s Court Present Difficult Factual Issues

By John G. Farinacci

Naturally, abandonment and failure to meet support obligations are two grounds upon which an otherwise lawful heir can be disqualified from inheriting in New York as in most other jurisdictions. EPTL 5-1.2. Failure to support is generally easier to determine. However, with the complexities of interpersonal relationships, especially in the context of marriages, what constitutes abandonment is not so simple.

The statute provides that a person may be disqualified from inheriting from his or her deceased spouse “where the surviving spouse abandoned the deceased spouse and such abandonment continued until the time of death.” EPTL 5-1.2(a)(5).

Simply leaving the marital home and not returning for the remainder of decedent’s life is not enough to constitute an abandonment; and rightly so, because there are often justifiable reasons for one spouse to leave another such as in the case where the deceased spouse was abusive. Thus, not only must there be a departure, such departure must be both unjustified and without the consent of the surviving spouse.  In a sense, the spouse that has some justifiable reason for leaving has the advantage from a proof perspective because the party asserting that there was abandonment bears the burden of proof. A recent decision by the Third Department provides a good case study of the foregoing.

In Matter of Yengle, 2014 N.Y. App. Div. LEXIS 145 (3d Dep’t 2014) [enhanced opinion available to subscribers], the surviving spouse and decedent had not resided together for more than 10 years prior to his death. The decedent died intestate and his sister sought to have the surviving spouse disqualified alleging abandonment. The surviving spouse moved for summary judgment which was granted by the Surrogate’s Court. She claimed that she had justifiably left the decedent because of his alleged alcoholism and related abusive behavior. Moreover, she claimed that he had consented to the split between them. She relied on her own deposition testimony and affidavit and the affidavit of her daughter.

On appeal, the Third Department agreed with the Surrogate that the foregoing was enough to meet her initial burden on a summary judgment motion thereby shifting the burden on decedent’s sister to submit sufficient evidence to demonstrate the existence of material issues of fact. However, the court further found that the sister had met her burden. She testified that decedent had not consented to his wife’s departure and wanted her back. She also submitted cards from decedent to the surviving spouse that substantiated that claim. In addition, some of decedent’s friends and other family members testified in support of the sister. The court found that such collective testimony called into question the spouse’s claims regarding decedent’s alleged alcoholism and decedent’s abusive behavior.

In the final analysis, the court held, “[i]nasmuch as the question of abandonment is one of fact, and often a close one, (internal citations and quotations omitted) and considering the evidence in a light most favorable to the petitioner, we find that there are material questions of fact with respect to whether it was respondent who left decedent, and if so, whether her leaving was justified and without decedent’s consent.” 2014 N.Y. App. Div. LEXIS 145 at *5.

Of course at trial, both parties might have proof problems because of the Dead Man’s statute so it will be interesting to see how this case is eventually resolved. However, it is resolved, it presents a good example of how close these abandonment cases can be and how the issue is seldom a simple one from a fact determination perspective.

Mr. Farinacci co-chairs and is a partner in Ruskin Moscou Faltischek's Trusts and Estates Department. He heavily concentrates his practice in trust and estate litigation, having successfully handled numerous contested cases in the New York State Surrogate's Court, Supreme Court, Supreme Court Appellate Division, Court of Appeals and Federal District Court. Mr. Farinacci also represents clients in estate planning, estate administration and guardianship matters.

Prior to joining RMF, Mr. Farinacci was a partner at a Long Island law firm, where he specialized in trust and estate matters. While in law school, Mr. Farinacci interned for the Nassau Surrogate's Court under Judge C. Raymond Radigan.


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