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marriage contractUnless you are a trusts and estates attorney or family law practitioner, odds are that the last time you encountered the term “elective share” was in law school or while studying for the bar exam. The purpose of statutory elective share law is to preclude one spouse from surreptitiously disinheriting the other. While not all states have a statutory elective share, those that do typically allow the spouse of a decedent to elect to recover anywhere between 30% and 50% of the decedent’s estate. In New York, that share is the greater of $50,000 or one-third of the estate, regardless of the length of the marriage, and a surviving spouse has a statutory right to claim his/her elective share unless one of the enumerated grounds of disqualification (annulment, divorce, incest, bigotry, abandonment of spouse and failure to support) set forth in New York’s Estates, Powers & Trusts Law (EPTL) is established.

While the New York legislature may have had the best of intentions when it drafted and enacted the elective share statute, over the last decade, opportunistic individuals have increasingly abused the statute to take advantage of our most vulnerable citizens: the elderly. In a disturbing trend now more commonly labeled “predatory marriage,” such individuals—often caregivers or those in positions of control—target the elderly and covertly marry them in order to take advantage of New York’s elective share statute. Unfortunately, while most people would agree that predatory marriage is decidedly unethical and immoral, the plain language of §5-1.1-A of the EPTL leaves courts and practitioners with very little wiggle room to argue against its strict application. However, in 2010, the Appellate Division, Second Department, rendered two decisions that circumvented the strict application of the elective share statute and brought justice to two families victimized by predatory marriage. In the seminal cases, Campbell v. Thomas and Matter of Berk, the Second Department determined that, notwithstanding the confines of New York’s elective share statute, courts are empowered to exercise their powers of equity to prevent predators from deliberately taking advantage of mentally incapacitated individuals by marrying those individuals for the purpose of securing an elective share.

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