Surrogate Peter Kelly
Petitioner, decedent’s wife, sought an advance payment of a portion of her elective share of the estate. Respondent, decedent’s son from a prior marriage, did not dispute petitioner’s status as decedent’s surviving spouse, and acknowledged her right to elect against the estate. However, while petitioner argued that the sum to be used in calculating the property of the estate applicable to payment of debts, legacies and expenses was over $8.5 million, respondent contended the sum was just over $3.5 million. The court found the shares of American Home Corp. were personalty, thus were property of the estate applicable to the payment of debts, legacies and expenses. Yet, it agreed decedent’s inter vivos transfer of real estate to an irrevocable trust was not part of the estate as decedent did not own the property at the time of his death. Thus, the contested sum was just over $5.9 million. However, the court ruled the statutory requirementto justify an advance distribution required the sum to exceed "by at least one-third" the amount of all known claims, legacies having priority or equality to petitioner’s right of electionwas not met. Hence, petitioner’s motion for an advance payment of a portion of her elective share was denied.
