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Court decides if surviving spouse is entitled to elective share – In re Berk, 897 N.Y.S.2d 475, 71 A.D.3d 883 (N.Y. App. Div., 2010)


In 1982, the decedent, I. Berk, executed a will naming his sons, J. Berk and H. Berk, as the co-executors of his estate. The will also left his entire estate to his sons and his grandchildren. I. Berk was a successful businessman with substantial assets. Over time I. Berk’s physical and mental health began to deteriorate. Eventually he had to use a wheelchair to get around, suffered memory loss, and was often confused.

In 1997 the petitioner, H. Wang, who was a 40-year-old recent immigrant from China, began to work as the decedent’s live-in caretaker. Eventually, the decedent, became totally dependent on the petitioner, who was constantly with him. Friends of the decedent reported that the petitioner treated the decedent poorly, frequently screaming and shoving him, causing him to become tearful. A friend of the decedent alleged that the decedent told him that he was afraid of the petitioner.

In April 2005 the decedent was diagnosed with dementia by a physician who examined him in connection with a contemplated guardianship proceeding. That physician stated that the decedent was no longer capable of caring for himself or managing his own affairs. Despite this, on June 17, 2005, the petitioner and the decedent got married in the New York City Clerk’s Office. At the time the petitioner was 47 years old and the decedent was 99 years. Neither the petitioner nor the decedent ever told the decedent’s friends, family members, or associates about the wedding. In addition, according to a friend who saw the decedent every day, the decedent and the petitioner never showed affection towards each other and the decedent never wore a wedding band. The decedent’s sons learned of the wedding after the decedent died in 2006, as they were riding in a car to the funeral home with the petitioner. At that time the petitioner told them that she had married the decedent.

In his will, the decedent left his entire $5 million estate to his children and grandchildren. He never wrote a new will or amended his will to include the petitioner. In December 2006, soon after the decedent’s was filed for probate, the petitioner filed a petition with the Surrogate’s Court to determine the validity of her right to take an elective share of the decedent’s estate. Under New York law a spouse is entitled to an “elective share” of the assets which is defined as the greater of $50,000.00 or one-third of the estate. In other words, if the court determines that the petitioner is entitled to the elective share, the petitioner would be entitled to $1,500,000.

The petitioner moved for summary judgment on the petition, arguing that there are no issues of fact regarding her status as the decedent’s surviving spouse. As a result, the court granted her motion, ruling that since she established that she is the decedent’s surviving spouse, as a matter of law she is entitled to judgment. The decedent’s son’s appealed.

On appeal, the court concluded that there was a triable issue of fact. Specifically, the court pointed out that the decedent’s sons submitted evidence that the petitioner knowingly took advantage of a mentally incompetent person who did not have the ability to consent to marriage for pecuniary gain. The evidence presented was sufficient to show that a triable issue of fact exists as to whether the petitioner was entitled to the statutory right of election. As a result, the petitioner is not entitled to summary judgment.

While the petitioner did lose her summary judgment motion, she did not completely lose her bid to get her elective share. The case will now move forward to a jury trial. While it may seem from the facts presented that the petitioner should lose, the jury will make that decision based on a full presentation of evidence from both sides.

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