The past few months have seen the inside pages of the law journal abound with decisions of interest. Indeed, while cover stories surely make their mark, opinions under cover are no less significant, and are worthy of reporting. The decisions in In re Berk and In re Smith are cases in point.

Wrongful Conduct Results in Forfeiture of Elective Share

In In re Berk, NYLJ, July 2, 2018, at 31 (Sur. Ct. Kings County), the Surrogate’s Court, Kings County, held, after trial, that by virtue of her wrongdoing, the decedent’s surviving spouse had forfeited her right of election against his estate. Prior to this result, the Berk estate had been the subject of two opinions by the Appellate Division, Second Department. In the first, the court reversed an order of the Surrogate’s Court, Kings County (Johnson, S.) granting summary judgment to the petitioner, finding that there was an issue of fact as to whether the petitioner had forfeited her right of election by her alleged wrongdoing; that is, by marrying the decedent knowing that he was mentally incapable of consenting to a marriage for the purpose of obtaining pecuniary benefits from his estate. The court further ruled that the appellants’ counterclaims alleging undue influence were improperly dismissed. In the second opinion, the court modified an order of the same court by adding as an issue of fact to be tried the question of whether the petitioner, the decedent’s surviving spouse, exercised undue influence upon the decedent to induce him to marry her for the purpose of obtaining pecuniary benefits from his estate, and replacing so much of the order, as imposed the burden of proof on appellants, the executors of the estate, by clear and convincing evidence, with a provision that placed the burden of proof on appellants by a preponderance of the credible evidence.