Matter of Koegel

*1  APPEAL by Irene Lawrence Koegel, in a probate proceeding in which John B. Koegel petitioned pursuant to SCPA 1421 to invalidate her notice of spousal election made pursuant to Estates, Powers and Trusts Law §5-1.1-A and for a declaration that she was not entitled to an elective share of the estate of William F. Koegel, also known as William Fisher Koegel, from an order of the Surrogate’s Court (Thomas E. Walsh, Acting Surrogate), dated June 23, 2015, and entered in Westchester County, which denied her motion to dismiss the petition pursuant to CPLR 3211(a)(1) and Domestic Relations Law §236(B)(3).OPINION & ORDERIn Galetta v. Galetta (21 NY3d 186), the Court of Appeals left unanswered the question of whether a defective acknowledgment of a prenuptial agreement could be remedied by extrinsic proof provided by the notary public who took a party’s signature. For the reasons that follow, we conclude that such proof can remedy a defective acknowledgment. Accordingly, we affirm the order of the Surrogate’s Court, which denied the appellant’s motion to dismiss a petition to invalidate her notice of spousal election.I.The appellant, Irene Lawrence Koegel (hereinafter Irene), and the decedent were married on August 4, 1984. The decedent had been widowed twice before marrying Irene. Irene had been widowed in July 1983. Irene and the decedent were married for more than 29 years at the time of the decedent’s death on February 2, 2014.A. Prenuptial AgreementPrior to their marriage, the decedent and Irene executed a prenuptial agreement (hereinafter the agreement) in July 1984.The agreement provided in the first paragraph that both the decedent and Irene desired that their marriage “shall not in any way change their pre-existing legal right, or that of their respective children and heirs, in the property belonging to each of them at the time of said marriage or thereafter acquired.”Pursuant to the second paragraph, the decedent and Irene agreed “[i]n consideration of said marriage and of the mutual covenants set out herein,” that they would not make a claim as a surviving spouse on any part of the estate of the other. Further, they irrevocably waived and relinquished “all right[s] to…any elective or statutory share granted under the laws of any

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