Opinion
October 26, 1970
Appeal from a decree of the Surrogate's Court of Broome County, entered December 22, 1969, which granted respondent the right to elect against the will of his deceased wife. Respondent and decedent were married on March 14, 1922, and lived together for over 40 years prior to decedent's death. Decedent executed a will on April 15, 1955, which specifically stated that she made no provision for her husband because he had a sufficient estate of his own. On September 5, 1956 decedent and respondent entered into a separation agreement which provided inter alia that they would remain owners, as tenants by the entirety, of their dwelling house, but that decedent would have exclusive occupancy and use of all furniture and household goods; respondent agreed to pay decedent $750 per year for support and maintenance; all jointly owned stocks and bonds and choses in action were to be equally divided between them; each party waived and released all rights and interest in real and personal property owned by the other; and each party waived and released their statutory right of election to receive a share of the other's estate. Thereafter, they divided the joint bank account, jointly owned shares of stock and jointly owned United States Government Bonds. Respondent moved to another location for about six months following the signing of the agreement and then returned. The couple were reconciled, lived together, resuming cohabitation and marital relations until the wife's death. Her estate was valued at $700,000, comprised primarily of IBM stock, while respondent's assets totaled $350,000, also in IBM stock. The IBM stock had always been held in their individual names. Following probate of decedent's will, respondent filed a notice to take his elective share against the will under EPTL 5-1.1. After a hearing, the Surrogate concluded that the reconciliation nullified the unexecuted terms of the agreement, including the waiver of election, and that respondent was entitled to elect against the will. It was his decision that the resumption of marital relations for a period of 12 years, when considered with the other circumstances, evidenced an intent to reconcile and abandon the separation agreement. The Surrogate's determination should be affirmed. Generally, a reconciliation, resumption of cohabitation and marital relations, accompanied by an intent to abandon a separation agreement renders that agreement void ( Zimmer v. Settle, 124 N.Y. 37; Zimtbaum v. Zimtbaum, 246 App. Div. 778, affd. 272 N.Y. 416). What is required is "such a resumption of the marital relation as to indicate an intention to abandon the agreement of separation" ( Brody v. Brody, 190 App. Div. 806, 807). The existence of such intent is primarily a factual question, to be decided in the first instance by the trier of fact and to be upset only if lacking support in the record ( Farkas v. Farkas, 26 A.D.2d 919; Denning v. Denning, 1 A.D.2d 741). Here, there is ample evidence that the parties intended that the reconciliation should nullify the unexecuted terms of the separation agreement, including the waiver. The record indicates that the parties resumed cohabitation and continued to live as man and wife for over 12 years following the separation, until decedent's death. They continued to file joint tax returns and to carry on normal marital relations during this time. They regularly attended church together and decedent accompanied respondent on various business and social functions. In 1966, they jointly purchased a mausoleum crypt. In fact, a mutual friend was never even aware that they had been separated. After reconciliation, the provisions concerning occupancy and possession of the home were ignored. Both of them occupied and enjoyed the house until the date of her death. After reconciliation, the provisions concerning support and maintenance were ignored, as were provisions concerning division of furniture and household goods. The entire record supports the court's finding that the decedent and respondent resumed marital relations and intended to abandon the separation agreement. Decree affirmed, with costs to parties filing briefs payable from the estate. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur. [ 61 Misc.2d 402.]