Recognizing the validity of a same-sex marriage between New Yorkers contracted in Canada, a Manhattan surrogate has ruled that a man is entitled to inherit the entire estate of his deceased male partner.
Surrogate Judge Kristin Booth Glen last week in Matter of the Estate of H. Kenneth Ranftle, 4585-2008, designated J. Craig Leiby as the "surviving spouse and sole distributee" of H. Kenneth Ranftle, who died on Nov. 1, 2008, just five months after the pair married in Quebec.
Her decision comes 4 1/2 months after Queens Surrogate Robert L. Nahman took a more cautious approach in holding that the validity of gay marriage had not been "definitely determined." Nahman ruled that the deceased partner's parents had to be included in probate proceedings.
By contrast, Glen determined that Ranftle's three siblings were not entitled to notification of the probate proceedings under Surrogate's Court Procedure Act §1403(1)(a). She cited the Feb. 1, 2008, decision of Martinez v. County of Monroe, 50 AD3d 189, in which the Appellate Division, 4th Department, ordered Monroe County to extend health insurance coverage to the same-sex spouse of a female employee working at a community college.
The New York Court of Appeals has ruled that same-sex marriage is not valid if contracted in New York. But the court in Martinez held that, with a few exceptions, state agencies should recognize marriages solemnized in Canada, Massachusetts and other states where it is legal.
Gov. David A. Paterson also has instructed state agencies to recognize such marriages.
In September, Nahman was asked to probate the will of Alan Zwerling, who was survived by his same-sex spouse, Martin Orrego, and his parents.
Citing Estates, Powers and Trust Law 4-1.1, Nahman acknowledged that where a decedent is survived by a spouse, his or her parents ordinarily are not part of the probate proceeding.
Here, however, the surrogate, in Will of Alan Zwerling, observed that "the validity of same-sex marriages had not been definitely determined" by the Appellate Division, 2nd Department.
The 2nd Department addressed the issue in Funderburke v. New York State Department of Civil Services, 49 AD3d 809 (2008), but did not reach the merits. Rather, it found that a 2006 ruling by Supreme Court Justice Edward W. McCarty of Nassau County rejecting a benefit claim from a same-sex couple had been mooted because of state Comptroller Thomas DiNapoli's subsequent decision to reverse his office's policy and recognize foreign same-sex marriages.
"In order to ensure that the decree in this proceeding is final and not subject to a subsequent jurisdictional attack, the Court finds that the parents of the decedent are necessary parties," Nahman ruled.
According to Arthur S. Leonard, a New York Law School professor who specializes in issues of sexuality and the law, Nahman erred in failing to recognize the controlling authority of the Martinez case, which he did not mention in his decision.
He called Glen's citation of Martinez "significant." While only a trial-level decision, it signals the court's willingness to give the same rights to surviving spouses of same-sex couples and heterosexual couples, Leonard said.
In an e-mail, Erica Bell of Weiss, Buell & Bell, who represented Ranftle's estate, said that while Glen's decision "does not supersede Surrogate Nahman's in Queens," it could "start the ball rolling toward establishing statewide precedent."
She suggested that Nahman "seemed to be saying" that he was "simply unsure of the import of Martinez."
What his decision meant "was that the deceased spouse's family members ... would have standing to object to the Will," she said. "This would be the same as allowing the parents or siblings of a deceased heterosexual husband to object to a Will leaving everything to the surviving wife," a result Bell called "outrageous."
Moreover, she said that the Queens ruling "implicitly suggested that had there been no Will, the surviving spouse might not have rights in intestacy to be the sole inheritor of his deceased spouse's estate," she wrote.
While Ranftle's siblings did not contest the probate of her client's will, the ruling precludes family members in future proceedings from objecting to the validity of a same-sex marriage, she said.
Peggy Brady of Brady Klein & Weissman, who represented the Zwerling estate, praised Glen's decision. In the Zwerling case, even though the surrogate held that the parents needed to be notified, they had already agreed to waive their right to object, she said.
