Summary
In Matter of Bennett, (142 AD2d 578, [2d Dept 1988]), the court held that a surviving spouse who had left the marital apartment, and who subsequently refused to pay rent on the apartment, even though his name was on the lease and he had the means to do so, was disqualified from taking his marital share of the decedent's estate.
Summary of this case from In Matter of DunnOpinion
July 5, 1988
Appeal from the Surrogate's Court, Queens County (Laurino, S.).
Ordered that the decree is affirmed, with costs payable by the appellant personally.
In December 1982 the appellant left the apartment where he resided with his wife of 18 months, never again to resume living in the same household with her until her death in April 1985. Although the lease to that apartment was in his name, he paid no additional rent until 1984 after the decedent had been evicted and legal action was brought against him. The record supports the Surrogate's determination disqualifying the appellant from exercising his right of election on the ground that he abandoned the decedent without justification or her consent (EPTL 5-1.2 [a] [5]; Matter of Prince, 36 A.D.2d 946, affd 30 N.Y.2d 512). Further, the Surrogate properly found that the appellant was disqualified from exercising his right of election on the additional ground that he failed or refused to provide support for the decedent until her death, although he had the means and ability to do so (see, EPTL 5-1.2 [a] [6]; Matter of Barc, 177 Misc. 578, affd 266 App. Div. 677, lv denied 266 App. Div. 742). Thompson, J.P., Spatt, Sullivan and Harwood, JJ., concur.