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Written agreement between spouses was enforceable and did not abate upon death, even though divorce was not finalized. Will of Dindiyal, 2009 NY Slip Op 32215 (N.Y. Surr. Ct. 2009)


In a case where there is an objection to the issuance of letters, the court considered whether an agreement between two spouses who were in the middle of a divorce abated upon the death of one of the spouses.  

The decedent and Asha were married. However, at the time of the decedent’s death, he and Asha were in the middle of a divorce.  The divorce was never finalized.  As part of the divorce process, the couple entered into a written agreement. The terms of the agreement included that 

  • Each gives up the right to share in the other’s estate.
  • Each gives up the right to act as executor or administrator of the other’s estate.
  • Each gives up the right to the spousal elective share

Upon the decedent’s death, identifying herself as the decedent’s wife, Asha petitioned the court for letters of administration which the court granted. In New York a petition for letters of administration is filed when there is no will.  Those who are eligible to receive letters include the decedent’s surviving spouse.  On the basis of their divorce not being finalized, Asha filed for letters.  Presumably, she was either unaware of the 2006 will.  

Lolita, the decedent’s sister, produced the 2006 will and filed a petition for probate asking the court to admit the decedent’s 2006 will to probate.  She also asked the court to revoke the letters that were issued to Asha.

The two petitions were in conflict with each other, prompting probate litigation where the court had to determine how to move forward– as in intestate estate with Asha as administrator or based on the 2006 will with Lolita as the executor.

The two specific issues before the Surrogate’s Court, Nassau County are whether Asha has standing to object to the admitting of the 2006 will and whether Asha’s letters of administration should be revoked.  The court’s decision on those issues turned on whether the agreement that the decedent and Asha entered into survived the decedent’s death.

Lolita’s argument for revoking the letters were based on the unambiguous agreement that Asha and the decedent entered into during the pendency of their divorce.  Lolita argued that Asha gave up her rights related to estate issues when she and the decedent signed the agreement.  She asserted that the terms of the agreement were binding even though the decedent and Asha’s divorce was never finalized.

The court found Lolita’s position to be compelling.  It found that the plain language contained in the contract between Asha and the decedent was effective at the time of its execution and it was not dependent upon a judgment of divorce.  In fact, the contract contained the following language indicating that it was an independent contract and not dependent on a judgment of divorce: 

“The parties further agree that the terms and provisions of this Agreement shall survive any Judgment of divorce between the parties, and shall not merge therein, and shall remain fully enforceable an [sic] as an independent contract between the parties.” 

The court also found that the contract did not abate upon the decedent’s death. 

Because the court found that the contract was binding and did not abate upon the decedent’s death, the court concluded that Asha did not have standing to object to the 2006 will that Lolita filed.  The court also revoked the letters of administration that were issued to Asha.

What’s next
Since the court revoked Asha’s letters and ordered an accounting, the next step would be for the court to make a decision on Lolita’s petition to probate the decedent’s 2006 will and to receive letters testamentary.  Because of the contract between Asha and the decedent, it was determined that Asha does not have standing to object to the 2006 will.  Unless someone else with standing objects, the court would likely admit the will and issue letters to Lolita so that she can move forward and settle the decedent’s estate as required by the New York law.


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