Daniel G. Fish Daniel G. Fish    

A predatory marriage is best described by the facts in a recent case. Riding together in a car on the way to the funeral home after the death of 100-year-old Irving Berk, his 47-year old caregiver announced for the first time to his sons that she had married their father one year earlier. Matter of Hua Wang, 2018 N.Y. Misc. LEXIS 2578 (Surr. Ct. Kings Cty., 2018).

A predatory marriage is defined as one where one party lacks capacity and the other party exploits that weakness and has them secretly marry to gain a portion of the estate. It is an example of elder financial abuse and it is on the increase due to the surge in the number of elderly. Due to a defect in the law, it is difficult to prevent such a claim from being recognized. However, a recent legislative proposal could force the wrongdoer to forfeit their claim against the estate.

Right of Election

New York’s right of election statute, Estates, Powers and Trusts Law (EPTL) §5-1.1-A, permits a surviving spouse to claim a share in the estate of a deceased spouse, even if he or she was left nothing, so long as they were married on the date of the decedent’s death. It was meant to be a shield to protect a spouse from being disinherited, but is now being used by the unscrupulous as a sword to take financial advantage of the vulnerable elderly. This has encouraged dishonest individuals to marry mentally incapacitated seniors and then claim the right of election share.

‘Void’ v. ‘Voidable’

A void marriage is one that never existed from the beginning, it is void ab initio. Bigamous or incestuous marriages are examples of void marriages. Since there never was a marriage to begin with, there can be no surviving spouse to claim an elective share.

A voidable marriage only becomes a nullity as of the date of a court order and not the date of the marriage. Marriages as a result of inability to consent or due to force or duress or fraud are examples of voidable marriages.

Disqualification From the Right of Election

Sham marriages can still result in the wrongdoer receiving a share of the estate because the New York statute that disqualifies a surviving spouse from claiming the elective share has a flaw. EPTL §5-1.2 bars an elective share claim only if there was a judgment declaring the nullity of the marriage in effect at the time of death of the spouse. If the clandestine marriage is detected before death, and a judgment nullifies the marriage before death, the wrongdoer can be denied the elective share. If the judgment of nullification is after death, the surviving spouse can make a claim.

But, the hallmark of predatory marriages is that they are often purposely concealed and not discovered during the lifetime of the deceased spouse. A post mortem judicial judgment of lack of capacity to marry or fraud or undue influence does not disqualify the wrongdoer from the elective share under a strict reading of the statute.

Domestic Relations Law §140 permits a proceeding to be brought by an interested party after the death of the spouse seeking to nullify the marriage. However, a judgment of nullity only is effective as of the date of the judgment and does not prevent the right of election claim.

By contrast, Mental Hygiene Law (MHL) §81.29(d) authorizes the court to revoke any previously executed contract if the court finds that the contract was made while the person was incapacitated. “If the court determines that the person was incapacitated and appoints a guardian, the court may revoke…any contract…during the lifetime or to take effect upon death…” Marriage is considered a contract under the Mental Hygiene Law and a judgment declaring a marriage void ab initio can be issued, even posthumously, Matter of Kaminester, 888 N.Y.S.2d 385, (Surr. Ct., NY County, 2009).

‘Matter of Hua Wang’

The estate of the deceased Irving Berk was valued at $5 million and his caregiver wife filed a claim for a portion of his estate under the right of election. She was unsuccessful, (after two rulings by the Appellate Division, Second Department), and according to the decision in Matter of Hua Wang, 2018 N.Y. Misc. LEXIS 2578 (Surr. Ct. Kings Cty., 2018), the court found:

[B]ased upon the credible evidence, the petitioner knew that decedent was mentally incapacitated at the time of their marriage, and entered into marriage with decedent to obtain the pecuniary benefits of said marriage at the expense of the beneficiaries.

To overcome the strict statutory language of EPTL §5-1.2, the court had to exercise its equitable powers and held:

It is well settled that no one shall be permitted to profit from his/her own fraud, or to take advantage of his/her own wrong, or to base any claim upon his/her own iniquity, or to acquire property by his/her own crime …

‘Campbell v. Thomas’

Howard Thomas was 72 years of age and suffering from terminal prostate cancer and dementia. His daughter went on a one-week vacation and left him the care of Nidia Colon, age 58. While his daughter was away, Nidia married Howard, changed the ownership of a bank account to make it joint with her and had herself named as the sole beneficiary of his retirement account. After Howard’s death, his children brought an action to nullify the marriage. Nidia filed a right of election in Howard’s estate. In Campbell v. Thomas, 73 A.D. 3d 103 (App. Div. 2d Dept. 2010) the court held:

In this case, the marriage was not declared a nullity until this court issued its decision and order in January 2007, more than five years after Howard’s death. Thus, under EPTL 5-1.2, Nidia technically has a legal right to an elective share as a surviving spouse. That determination, however, does not end this court’s inquiry. The literal terms of a statute should not be rigidly applied if to do so “would be to ordain the statute as an instrument for the protection of fraud” Citizens Util. v American Locomotive Co., 11NY2d 409, 420 184 NE2d 171, 230 NYS2d 194 (1962), quoting Southern Cal. Enters. V D.N. & E. Walter & Co., 78 Cal App 2d 750, 752, 178 P2d 785, 786 (1947). Mechanically applying EPTL 5-1.2 to honor the right of election of a surviving spouse whose very status as a spouse was procured through overreaching or undue influence would “seemingly invite a plethora of surreptitious ‘deathbed marriages’ as a means of obtaining one third of a decedent’s estate immune from challenge” (Matter of Berk, 20 Misc. 3d 691, 697, 864 NYS2d 710 (2008).

This theory is closely analogous to the “slayer rule” where New York has no specific statute addressing this matter, but the courts in equity will bar a murderer from profiting from his or her crime. The problem with relying upon the court to act as a court of equity is the understandable reluctance of a court to override specific statutory language.

A Legislative Solution

Fortunately, the identified flaw in EPTL §5-1.2 has a remedy. Simply add language in which a judgment of annulment or nullity, even after death, would disqualify the surviving spouse from claiming the elective share. Such a solution has been introduced in this legislative session, New York Assembly Bill (A248), Senate Bill (S3345), which would amend EPTL §5-1.2 to include the following language:

A final decree or judgment of annulment or declaring the nullity of a void marriage or dissolving such marriage, recognized as valid under the law of this state, is issued before or after the deceased spouse died. For the purposes of this section, in the event any such decree or judgment is issued after the deceased spouse died, the marriage shall be deemed a nullity immediately prior to the death of such spouse.

Daniel G. Fish is a partner at McLaughlin & Stern.