Marriage Procured by Undue Influence Deemed To Disqualify Spouse From Taking Elective Share

Authored by: Michael C. Levy, Esq.

The recent Brooke Astor trial raised public awareness of the issue of elder abuse and the use of undue influence to unjustly enrich the perpetrators of the abuse.  To its credit, the New York State legislature has taken steps to prevent future abuse, most notably with the revisions to the state’s Durable Power of Attorney form.  However, despite these steps, there remain several statutory loopholes available to the abusers of the elderly that the legislature has yet to address.  One such loophole, related to the rights of a spouse whose marriage is annulled after the death of a decedent, was recently addressed by the Second Department in Campbell v. Thomas.

The Court was asked to determine whether a spouse whose marriage had been procured by undue influence would be able to take under the estate of the deceased by claiming her spousal right of election.  The decedent, Howard Nolan Thomas, married Nidia Colon Thomas while he was suffering from dementia.  After Howard’s death, his children commenced an action to have Howard and Nidia’s marriage annulled, which was granted by the Supreme Court in Putnam County.  Subsequent to the annulment, Nidia filed a right of election which was challenged by Howard’s children.

Under the New York Estates, Powers and Trusts Law, a surviving spouse is given a personal right to receive the greater of $50,000 or 1/3 of a decedent’s estate.  However, EPTL 5-1.2(a) disqualifies a husband or wife from taking their elective share if a decree of divorce, annulment or nullity of a marriage is entered prior to the decedent’s death.  This provision relates solely to pre-death marital dissolution and does not discuss marriages dissolved post-mortem.  Based on the statutory language alone, Nidia seemed entitled to take her elective share of Howard’s estate.

The Second Department decided otherwise, citing the equitable principle that “no one shall be permitted to profit by his own fraud, or take advantage of his own wrong, or to found any claim upon his own iniquity or to acquire property by his own crime.”  The court found that Nidia was aware of Howard’s condition and took advantage of it for her own pecuniary gain.  In deciding against Nidia, the court called upon the legislature to re-examine the provisions of the EPTL and Domestic Relations Law to make sure that persons such as Nidia would be prevented from using this statutory loophole to engage in elder abuse.

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