Opinion
September 17, 1991
Appeal from the Surrogate's Court, New York County (Renee R. Roth, S.).
Petitioner's right to an accounting is dependent upon recognition of Catherine Gardner as "surviving spouse" of decedent. As it has been undisputed that they were married, the burden was upon respondent to establish a disqualification under the sections relied upon by her, EPTL 5-1.2 (a) (5) and (6) (Matter of Maiden, 284 N.Y. 429; Matter of Riefberg, 58 N.Y.2d 134). While it is clear that Catherine Gardner departed the marital residence at least five years prior to decedent's death, to care for her ill sister in Florida, there was an inadequate showing of the requisite elements that such departure was unjustified and without decedent's consent (supra). Respondent also failed to establish that Catherine Gardner had a duty to support decedent; had the means or ability to do so; and failed or refused to do so.
Concur — Murphy, P.J., Rosenberger, Ellerin, Kassal and Rubin, JJ., concur.