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A N 8 D 8 B 18 AR CE www. NYLJ.com SIN Volume 263—NO. 14 Wednesday, January 22, 2020 Outside Counsel Boomers, Beware: Predatory Marriage and New York’s Elective Share Law

strict application. However, in 2010, by Yolanda Kanes, the Appellate Division of the State of Maryann Stallone and Amanda Leone New York, Second Department, ren- dered two decisions that circumvented nless you are a trusts and the strict application of the elective estates attorney or fam- share statute and brought justice to By And ily law practitioner, odds Yolanda Maryann Amanda two families victimized by predatory are that the last time you Kanes Stallone Leone marriage. In the seminal cases, Camp- encountered the term “elec- Utive share” was in law school or while to support) set forth in New York’s studying for the bar exam. The pur- Estates, Powers & Trusts Law (EPTL) In a disturbing trend now more pose of statutory elective share law is is established. commonly labeled “predatory to preclude one spouse from surrepti- While the New York legislature may marriage,” such individuals—of- tiously disinheriting the other. While have had the best of intentions when it ten caregivers or those in posi- not all states have a statutory elective drafted and enacted the elective share tions of control—target the share, those that do typically allow the statute, over the last decade, oppor- elderly and covertly marry them spouse of a decedent to elect to recover tunistic individuals have increasingly anywhere between 30% and 50% of the abused the statute to take advantage of in order to take advantage of decedent’s estate. In New York, that our most vulnerable citizens: the elder- New York’s elective share statute. share is the greater of $50,000 or one- ly. In a disturbing trend now more com- third of the estate, regardless of the monly labeled “predatory marriage,” bell v. Thomas and Matter of Berk, the length of the marriage, and a surviving such individuals—often caregivers or Second Department determined that, spouse has a statutory right to claim those in positions of control—target notwithstanding the confines of New his/her elective share unless one of the the elderly and covertly marry them in York’s elective share statute, courts are enumerated grounds of disqualification order to take advantage of New York’s empowered to exercise their powers of (annulment, divorce, incest, bigotry, elective share statute. Unfortunately, equity to prevent predators from delib- abandonment of spouse and failure while most people would agree that erately taking advantage of mentally predatory marriage is decidedly unethi- incapacitated individuals by marrying

Yolanda Kanes is chair of the trusts and estates cal and immoral, the plain language those individuals for the purpose of practice at Tannenbaum Helpern Syracuse & of Section 5-1.1-A of the EPTL leaves securing an elective share. Hirschtritt. Maryann Stallone is a partner and courts and practitioners with very In Campbell v. Thomas, 73 A.D.3d 103 Amanda Leone is an associate in the firm’s litiga- tion and dispute resolution practice. little wiggle room to argue against its (2d Dept. 2010), a 58-year-old caretaker Wednesday, January 22, 2020 surreptitiously married a 72-year-old had forfeited that right by “wrongfully that regard which it should entertain man with dementia while his daugh- alter[ing] [the decedent’s] testamen- for its own character and dignity.’” Id. ter—who normally cared for him—was tary plan in her favor, just as surely as at 119 (quoting Matter of Hogan, 295 away on vacation. Id. at 105-06. Without if she had exploited his incapacity to N.Y. 92, 96 (1946)). telling the family, the caretaker trans- induce him to add her to his will and Similarly, in Matter of Berk, 71 A.D.3d ferred the man’s assets into her name bequeath her one-third of his estate.” 883 (2d Dept. 2010) (Berk I), the care- and caused herself to be named as the Id. at 118-19. The court reasoned that giver of a 91-year-old widower took the sole beneficiary of his pension. Id. at “[u]nder such circumstances, equity widower to City Hall and married him 106. The man passed away several will intervene to prevent the unjust without telling any family or friends months later. Id. The decedent’s will left enrichment of the wrongdoer.” Id. at until the day before the decedent’s his entire estate to be divided equally 119. funeral. Id. at 884-85. The decedent’s among his adult children and made no Critical to the Campbell decision was will left his multi-million dollar estate bequest to his “new” spouse. Id. When the Court’s acknowledgement that “[m] to his two sons and four grandchildren. the caretaker attempted to claim her echanically applying [the statute] to Id. at 885. The caregiver (and now wife) right of election, the decedent’s adult honor the right of election of a sur- filed an application in Surrogate’s Court children challenged the election in viving spouse whose very status as a seeking her elective share under the Surrogate’s Court and simultaneously spouse was procured through over- EPTL. Id. The decedent’s two sons pursued an action in Supreme Court to reaching or undue influence would challenged the application and filed declare the marriage and asset trans- ‘seemingly invite [ ] a plethora of sur- a counterclaim seeking a declaration fers null and void. Id. The children ulti- reptitious ‘deathbed marriages’ as a that the marriage was a sham and that mately prevailed in nullifying the mar- means of obtaining one-third of a dece- the wife was not entitled to her elec- riage in 2007 before the Supreme Court. dent’s estate immune from challenge.’” tive share. Id. The Surrogate’s Court The Appellate Division affirmed and Id. at 116 (quoting In re Hua Wang, 20 granted summary judgment in favor of directed the Supreme Court to enter a Misc.3d 691, 697 (Kings County Sur. Ct. the wife and declared that the election judgment declaring that the caretaker 2008). was valid. Id. In Berk I, the Appellate should “have no legal rights and can While clarifying that the caretaker’s Division reversed, finding that a triable claim no legal interest as a spouse of conduct in Campbell was not criminal, issue of fact existed as to whether the [the decedent].” Id. at 110 (referenc- the Appellate Division nevertheless rec- wife forfeited her statutory right of ing Campbell v. Thomas, 36 A.D.3d 576 ognized Campbell’s parallels to Riggs election by taking unfair advantage of (2d Dept. 2007)). The caretaker later v. Palmer and the “slayer statute” prin- the decedent and obtaining benefits moved to modify the judgment on the ciple that “‘[n]o one shall be permitted that only became available by virtue grounds that, regardless of whether the to profit by his own fraud, or to take of being that person’s spouse. Id. The marriage was later declared null and advantage of his own wrong, or to found Appellate Division observed that dece- void, she was nevertheless entitled to any claim upon his own iniquity, or to dent’s sons had tendered evidence the elective share as a surviving spouse acquire property by his own crime.’” from which a trier of fact could deter- under the EPTL. Id. at 110. The Supreme Campbell, 73 A.D.3d at 116 (citing Riggs mine that the caregiver “knowing that Court denied the caretaker’s motion to v. Palmer, 115 N.Y. 506, 511 (1889). The a mentally incapacitated person [was] modify the judgment, and the caretaker Court also reasoned that, “[i]t is ‘an incapable of consenting to a marriage, appealed. Id. Although the Appellate old, old principle’ that a court, ‘even in deliberately [took] advantage of the Division agreed that the caretaker was the absence of express statutory war- incapacity by marrying that person technically a “surviving spouse” within rant,’ must not ‘allow itself to be made for the purpose of obtaining pecuni- the plain meaning of EPTL 5-1.1-A and the instrument of wrong, no less on ary benefits that become available by thus had a statutory right to the elec- account of its detestation of everything virtue of being that person’s spouse.” tive share, it held that the caretaker conducive to wrong than on account of Id. If the trier of fact were to find this Wednesday, January 22, 2020 to be the case, the Court stated that and opportunity to influence dece- As they get older, they are increasingly equity would intervene to prevent the dent’s actions.” Matter of Hua Wang, vulnerable and susceptible to exploita- wife from “becoming unjustly enriched 60 Misc.3d 1207(A), 2018 WL 3194100 tion. Predatory marriage is not a fiction; from her wrongdoing, as a court cannot at *4 (Kings County Sur. Ct. 2018). it is a real threat to our most vulnerable ‘allow itself to be made the instrument Campbell and Berk were truly land- citizens and their families. Whether the of wrong.’” Id. at 885-86. The Appel- mark decisions. For the first time, New powers of equity employed by the Berk late Division remanded the case for a York courts went beyond the bounds and Campbell courts are sufficient to determination of these discrete issues. of statutory disqualification, and used tackle predatory marriage in the long On remittitur to the Surrogate’s their equitable powers to correct the term remains to be seen. On the other Court, when another dispute arose as injustice that would result from the hand, as the population ages and preda- to which party shouldered the burden strict application of the elective share tory marriages proliferate, it may finally of proof, the case returned to the Appel- statute. In doing so, they laid a frame- come to pass that the legislature will late Division, Second Department, in work to enable other courts to combat step forward and address the confines 2015. See Matter of Berk, 133 A.D.3d 850, the growing problem of elder abuse of elective share laws that do not ade- 851 (2d Dept. 2015) (Berk II). Expanding and exploitation. quately address the emerging problem upon its forfeiture analysis from 2010, Perhaps the most interesting and of predatory marriage. the Appellate Division stated: potentially consequential part of the An alternative ground for forfeiture of the right of election is whether [the surviving spouse], as the Whether the powers of eq- [decedent’s] caretaker, exercised uity employed by the ‘Berk’ and undue influence upon the decedent ‘Campbell’ courts are sufficient to to induce him to marry her for the tackle predatory marriage in the purpose of obtaining pecuniary ben- long term remains to be seen. efits that become available by virtue of being that person’s spouse, at the Berk trial decision was the Surrogate’s expense of the intended beneficia- Court’s candid discussion of the care- ries … [T]he burden of proof on this taker’s “insidious and duplicitous” issue should be placed upon the conduct. While the earlier Appellate appellants [the decedent’s sons] Division decisions in Campbell, Berk I, by a preponderance of the cred- and Berk II placed somewhat greater ible evidence. emphasis on the undue influence that Id. at 852. the surviving spouse exerted over Applying the Appellate Division’s the decedent in order to secure an analysis on remand, the Surrogate’s entitlement to the elective share, by Court ultimately held that the dece- acknowledging that a decedent could dent’s sons satisfied their burden essentially be “scammed” into mar- of proof and that the elective share riage merely by dishonest motives should not be funded: “The evidence or conduct, the Surrogate’s Court’s presented shows consistent, insidious decision following the Berk trial seem- and duplicitous conduct that led to ingly broadened the scope of future petitioner’s clandestine marriage to predatory marriage challenges. Reprinted with permission from the January 22, 2020 edition of the NEW YORK decedent. As decedent’s live-in care- We have an entire generation—the LAW JOURNAL © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 taker, petitioner had ample motive Baby Boomers—entering retirement. or [email protected]. # NYLJ-01222020-433000