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ESTATE OF PEGGY WU MAULL, Deceased

ESTATE OF PEGGY WU MAULL, Deceased (12/3522/C) — At the call of the calendar on March 3, 2017, the co-Executors' motion for a summary determination of their defense that petitioner Baldwin Maull is disqualified as decedent's surviving spouse on the grounds of abandonment (EPTL 5-1.2[a] [5]) was denied.

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ESTATE OF PEGGY WU MAULL, Deceased (12/3522/C) — At the call of the calendar on March 3, 2017, the co-Executors’ motion for a summary determination of their defense that petitioner Baldwin Maull is disqualified as decedent’s surviving spouse on the grounds of abandonment (EPTL 5-1.2[a] [5]) was denied.

The court determined that the co-Executors met their burden of establishing a prima fade case of disqualification of the surviving spouse on the ground of abandonment. They showed that Mr. Maull was absent from the marital home and failed to fulfill the basic obligations of a marriage for a period of years commencing in 2005 and that his absence continued until decedent’s death in January 2012. The co-Executors also showed that Mr. Maull’s departure from the marital home was not caused by decedent’s conduct and was therefore unjustified. Moreover, case-law cited by the Co-Executors supports the conclusion that Mr. Maull’s initial departure from the marital home as the result of a temporary order of protection issued against him and in favor of decedent may be a basis for a finding of his abandonment of decedent (see, e.g., James v. James, 13 AD3d 583 [2d Dept 2004]; and Gerteis v. Gerteis, 44 AD3d 709 [2d Dept 2007]).

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