Surrogate Rita Mella
Decedent’s surviving spouse Schwartz sought a determination that proceeds of a certificate of deposit account decedent established during their marriage, and payable on death to his daughter Gross, constituted a testamentary substitute for the purpose of Schwartz’s elective share. Schwartz previously brought a proceeding seeking identical relief, which was denied. Gross argued this action was barred by res judicata. While Gross was technically correct, as dismissal of the first petition was not with prejudice, rather Schwartz was directed to follow proper procedure for asserting her right to an elective share, the previous court decision did not bar her from filing this second petition. Schwartz also asserted that sufficient supporting information was provided to determine the effect of her election. The court noted the maximum Schwartz may seek as her elective share was $50,000, thus Gross correctly pointed out that Schwartz failed to provide sufficient proof of assets of the estate to permit the court to determine if Schwartz’s elective share had been satisfied from assets already collected. The court held the petition in abeyance so a determination as to the computation of the elective share was made.
