Surrogate Peter Kelly
Decedents surviving spouse, Maria, sought to be relieved from her default in filing a notice of election, and an extension of time to file. Administrator Alonso moved for summary judgment dismissing the petition. Decedent’s daughter, Carmen, died testate after her father. Maria withdrew objections to probating Carmen’s will in consideration for 70 percent of Carmen’s estate, including property Carmen would have received from decedent’s estate previously bequeathed to Maria. The court questioned if Maria was barred by the passage of time from asserting her right of election to decedent’s estate under Estates Powers and Trust Law §5-1.1-A. It found in the affirmative, noting Maria did not attempt to file a notice of election for more than six years, while the statute permitted no more than two years after a decedent’s death. It found Maria was responsible for the long delay, failing to produce decedent’s will, which was in her possession, until accomplishing a favorable settlement of her objections in Carmen’s estate, and after Alonso’s motion to compel her to do so. Thus, as Maria failed to rebut Alonso’s prima facie showing of his entitlement to summary judgment, the motion was granted and the petition dismissed.