Opinion
October 13, 1998
Appeal from the Surrogate's Court, New York County (Eve Preminger, S.).
EPTL 5-1.1-A (e) (2) provides that to be effective, a spouse's waiver of election "must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property". Here, while there was no acknowledgment by the subscribing spouse during the decedent's lifetime — and any attempt to manufacture such an acknowledgment post mortem would be ineffective ( see, Matter of Warren, 16 A.D.2d 505, 508, aff'd 12 N.Y.2d 854) — the waiver is nonetheless susceptible of being "proved" in the manner required for the recording of a conveyance of real property, as set forth in Real Property Law § 304. The proof of execution prepared after the decedent's death by the attorney who signed the waiver as a subscribing witness is sufficient to comply with Real Property Law § 304 ( see, Matter of Maul, 176 Misc. 170, aff'd 262 App. Div. 941, aff'd 287 N.Y. 694; Matter of Stegman, 42 Misc.2d 273; Matter of Felicetti, NYLJ, Jan. 22, 1998, at 31, col. 3). As the subject waiver was, accordingly, valid, petitioner's application to elect against his spouse's estate was properly dismissed.
Concur — Lerner, P. J., Sullivan, Mazzarelli, Andrias and Saxe, JJ.