Opinion
File No. 2019-451/D
10-24-2023
PETITION OF Samantha CURTIS-SKOP, surviving spouse of Alfred Skop, Deceased, For leave to serve and file a late notice of election Decedent's estate per EPTL § 5-1.1-A(d)(2)
Kurt E. Johnson, Esq., Attorney for Petitioner Samantha Curtis-Skop, 337 N. Main St., Suite 12, New City, NY 10956 Sonia Burgos Crannage, Esq., Sichol & Hicks, P.C., Attorneys for Executor Milton Shkop, 139 Lafayette Avenue, Suffern, NY 10901
Kurt E. Johnson, Esq., Attorney for Petitioner Samantha Curtis-Skop, 337 N. Main St., Suite 12, New City, NY 10956
Sonia Burgos Crannage, Esq., Sichol & Hicks, P.C., Attorneys for Executor Milton Shkop, 139 Lafayette Avenue, Suffern, NY 10901
Keith J. Cornell, S. Before the Court is the motion for summary judgment on the petition of Samantha Curtis-Skop (Petitioner) for leave to serve and file a late notice of election against Decedent's estate per EPTL § 5-1.1-A(d)(2), or for a finding that the filing was timely made. Petitioner further moves for summary judgment on her claim that a half interest in the property at 1 Lawnwood Place, New City, New York (the "Property") is subject to the spousal right of election. The motion is opposed by Decedent's executor, Milton Shkop, and Decedent's two children and two grandchildren, who all cross-move for summary judgment in their favor.
Background
Decedent and his first wife, Audrey Skop, divorced in 1973. There were two children from the union. The Judgment of Divorce was so ordered by the Hon. Leonard Rebenfeld on December 28, 1973. The Order included terms disposing of the parties’ marital abode located at One Lawnwood Place, New City, New York (the Property). The Order gave Decedent the right to exclusive possession of the Property, and further directed that the Decedent had the exclusive right to sell the Property in his sole discretion. Finally, the Order directed that the proceeds from sale, other than any funds that would be necessary to satisfy an outstanding mortgage, would be distributed to the children. Although no new deed was issued, the Order created a life tenancy for Decedent, with his children as the remaindermen.
Decedent executed a will on November 7, 1996, which incorporated the obligation related to the Property. The will also referenced Samantha Curtis, who at that time was not yet married to Decedent, but who was already his girlfriend. Decedent and Petitioner married on September 9, 2008. They resided in the Property together. Decedent had not sold the Property when he died on May 14, 2019.
Decedent's brother and named executor, Milton Shkop, filed a petition to probate Decedent's 1996 will on June 20, 2019. Preliminary letters testamentary issued to Milton Shkop on July 25, 2019. Petitioner herein filed objections to the probate petition on September 6, 2019. She also filed a petition to probate an allegedly subsequently executed instrument. On June 25, 2020, Petitioner withdrew her objections to probate of the 1996 instrument. She also withdrew her alternative probate petition. Letters testamentary issued to Milton Shkop on July 22, 2020. The Property was sold on September 30, 2020 and the proceeds were distributed by Mr. Shkop to Decedent's two daughters.
On July 16, 2021, Petitioner filed the instant petition seeking relief from default in filing a notice of spousal election. She filed an amended petition on December 8, 2021. For various reasons, Petitioner failed to successfully serve citations until March 2023. The return date was set for April 25, 2023. Respondents herein filed a verified answer/objection on April 24, 2023.
On June 2, 2023, Petitioner moved for summary judgment on her petition to file a late election and for summary judgment on her claim that the Property is part of Decedent's estate. She argued, first, that her filing per EPTL § 5-1.1-A(d)(2) was timely due to certain executive orders issued during the COVID-19 pandemic, which tolled the statute of limitations for many claims. In the alternative, she argues that her default in filing should be excused in the Court's discretion. Second, she argues that the Property is part of Decedent's estate. She argues that the Decedent and his ex-wife owned the property as tenants in common per their divorce. She argues that the terms in Decedent's will that purports to transfer his interest in the Property to his daughters is a testamentary substitute per EPTL § 5-1.1-A(b)(1)(E)(ii).
In opposition, the Executor argues that Petitioner's motion to file a late election should be denied. The Executor argues that the withdrawal of the objections to probate of the 1996 will and the withdrawal of the petition to file the alternate instrument were knowing waivers of Petitioner's claim to file a right of spousal election. Second, the Executor argues that enlargement of time for filing the election is moot because the Property is not part of the estate.
In reply, Petitioner argues that she did not waive her right to election. She further argues that the beneficiaries take as legatees, not creditors, and their claim is not superior to Petitioner's right to her elective share. Discussion
In New York, spouses are prohibited from completely disinheriting each the other. See EPTL § 5-1.1-A. The statute provides a qualifying surviving spouse a personal right of election against decedent's will, which allows the surviving spouse to take a statutorily specified share of the deceased spouse's estate. The surviving spouse is directed to elect against the will "within six months from the date of issuance of letters testamentary ... but in no event later than two years after the date of decedent's death." EPTL § 5-1.1-A(d)(1). However, the court may excuse a default for good cause shown and extend the time to make the election beyond two years. See EPTL § 5-1.1-A(d)(2).
Here, Decedent passed on May 14, 2019 and letters testamentary issued on July 22, 2020. Pursuant to the statute, the latest date for filing a notice of election was May 14, 2021. On July 16, 2021, Petitioner filed seeking relief from default in filing a notice of spousal election. She filed an amended petition on December 8, 2021. In the motion for summary judgment, Petitioner argues that the filing was actually timely due to tolling of statutes of limitation pursuant to various Executive Orders that were promulgated during COVID. In the alternative, Petitioner argues that any delay in filing was a result of law office failure and that her default should be excused.
The motion for summary judgment for the acceptance of the notice of election is granted. Pursuant to the various Executive Orders issued during COVID, the time for filing was tolled such that the filing on July 16, 2021 was timely. See Matter of Powell , 73 Misc.3d 398, 154 N.Y.S.3d 201 (Surr. Ct. Erie Co. 2021) (time that is tolled is added on to statutory period). Further, even if the toll was not included, there was no prejudice to the estate by allowing the late filing. See Matter of Pia Jeong Yoon , 78 Misc.3d 1203[A], 2023 N.Y. Slip Op. 50144[U], *2, 2023 WL 2292790 (Surr. Ct. Queens Co. 2023) ("the delay in filing the original petition is minimal and no prejudice has resulted from the delay.") (granting permission to file late notice of election).
However, on the second argument, the Court finds that the Property is not part of the estate and is not subject to the spousal right of election. Petitioner points to In re Estate of Dunham , 63 Misc.2d 1029, 314 N.Y.S.2d 29 (Surr. Ct. Greene Co. 1970), to support the argument that the rights of the children under the settlement agreement and divorce are subordinate to a surviving spouse's elective share. However, Dunham was decided 10 years before the concept of "marital property" was added to DRL § 236. Since that change in the law, Courts have routinely found that distribution of assets pursuant to a divorce is an enforceable contractual right, rather than creation of judgment creditor relationship. See, e.g. Pangea Capital Mgt., LLC v. Lakian , 34 N.Y.3d 38, 108 N.Y.S.3d 425, 132 N.E.3d 618 (2019) (ex-wife's claim to property was not subordinate to judgment creditor); Kaplan v. Kaplan , 82 N.Y.2d 300, 604 N.Y.S.2d 519, 624 N.E.2d 656 (1993) (when pension benefits were assigned to first wife pursuant to divorce decree, second wife not entitled to enforce subsequently executed assignment of beneficiary form); Estate of Marcello R. Calligaro , 2008 NYLJ LEXIS 5730 (Surr. Ct. Bronx Co. 2008) (surviving spouse may not take an elective share against marital property (pension benefits) irrevocably transferred in accord with the terms of a separation agreement which divides marital property and fixes support obligations).
EPTL § 5-1.1-A excludes irrevocable transactions (or transactions that are revocable only with the consent of a person having a substantial adverse interest) from constituting testamentary substitutes unless they are effected after the date of marriage. Here, the Judgment of Divorce provided that the Property was to be governed by the terms of that court's judgment. In keeping with the dictates of the Judgment of Divorce, Decedent parroted the terms in his will. While the Judgment of Divorce may not be a paragon of clarity, its requirement that any proceeds of a sale (subsequent to certain adjustments) be divided equally between the Decedent's (and his ex-wife's) two children is crystal clear. Decedent's subsequent marriage in no way affected the obligation to dispose of the Property in accordance with the Judgment of Divorce. Petitioner could no more claim an interest in the Property (or the proceeds from its sale) before Decedent's death than she can now seek to claim any interest in it upon his death by way of a right of election.
Therefore, it is
ORDERED that Petitioner's motion for summary judgment on her right to file a notice of election is GRANTED; and it is further
ORDERED that Petitioner's motion for summary judgment on her claim that the Property is part of Decedent's estate and subject to a right of spousal election is DENIED; and it is further
ORDERED that Respondent Executor's motion for summary judgment on his claim that the Property is excluded from the net estate is GRANTED.