Published on:

Court Rules on Will involving Same Sex Marriage


A man married his same-sex partner in Canada in June 2008. He then executed a last will and testament two months later on August 12, 2008. In that will, he made three bequests to his three brothers and he also made a bequest to his goddaughter. He left the residue of his estate to his same-sex partner. He named his same-sex spouse as the executor of his estate.

In December 2008, the testator died. His same-sex spouse, who was also named executor of his will filed the petition for probate of his deceased spouse’s will. He served the three brothers and the goddaughter with notice of probate. In his petition, he claimed that he is the surviving spouse of the testator and the sole distribute.

Three days after filing the petition for probate, the Surrogate’s Court of New York granted the petition for probate without issuing citations.

In its ruling dated January 26, 2009, a New York Probate Lawyer said the Surrogate’s Court granted the petition for probate and also issued an opinion where it named the same-sex spouse as the testator’s surviving spouse and sole distributee. The Surrogate’s Court opined further that since the person petitioning for probate of the will is the surviving spouse and sole distributee, the Surrogate’s Court does not need to issue a citation to anyone else. In that opinion as well, the Surrogate’s Court found that the testator’s marriage to his same-sex spouse is considered valid in New York because it is a valid marriage in Canada. The Surrogate’s Court then recognized the same-sex marriage as a valid marriage for the purpose of distributing the estate to the surviving spouse of the testator.

Five months after this ruling was issued by the Surrogate’s Court, the brother of the testator appealed this opinion and ruling of the Surrogate’s Court. He asked that the ruling admitting the will into probate be vacated and that he be allowed to file objections. He asserted that the Surrogate’s Court had no jurisdiction to grant probate without issuing citations to the testator’s surviving brothers. He also asserted that the Surrogate’s Court has no jurisdiction to recognize the same-sex marriage of the testator to the executor as a valid marriage because same-sex marriages violate public policy.

The Supreme Court upheld the Surrogate’s Court’s ruling. Westchester County Probate Lawyers said it ruled that since the will’s only distributee is the same person who prayed for the admission of the will into probate that alone is sufficient to admit the will into probate. And further, the same-sex spouse of the testator was correctly declared to be the surviving spouse.

The laws of New York recognize marriages which are celebrated in other states: if a marriage is valid in the state where it was celebrated then it shall be recognized as valid in New York. The only two exceptions to this are: that the marriage is contrary to the prohibitions of natural law or the express prohibition of a statute. New York City Probate Lawyers said that since the same-sex marriage is not prohibited by natural law ( as when the marriage is incestuous) and there is no express prohibition of same-sex marriage in New York (no law in New York prohibits same-sex marriage), then the Surrogate’s Court was correct in holding that since the same-sex marriage celebrated by and between the testator and the executor in Canada is considered by Canada as a valid marriage, then New York must also consider it as a valid marriage. Accordingly, the ruling of the Surrogate’s Court admitting the will into probate is upheld by the Supreme Court.

Contesting a will is difficult and it may involve the application of the rules on marriage as in this case. You need a lawyer who can help you contest a will on all available grounds. Stephen Bilkis and Associates are available for consultation. They can inform you of your legal options so that you can make an informed choice.

Contact Information