This is an uncontested petition seeking court authorization of a renunciation executed by the attorneys-in-fact for decedent’s husband (EPTL §2-1.11[d][6]). Testator died on December 1, 2017, survived by her husband and two children from her prior marriage. Under her January 18, 2007 will, she left most of her $5.4 million estate to her husband, whom she nominated as executor along with her son. However, she further provided that, in the event the husband renounced all or part of his interests under the will, the renounced assets were to be distributed equally to her children. The son offered the will for probate because the husband is under a disability. The will was admitted to probate without objection and letters testamentary issued to the son. Under EPTL §2-1.11 (Renunciation of property interests), the husband had until September 1, 2018, i.e., nine months from decedent’s date of death, to renounce any portion of his interests under the will by a signed and acknowledged writing filed with the court as set forth in subparagraph (c)(2). On August 4, 2018, decedent’s children executed the renunciation at issue pursuant to a duly filed 2012 durable power of attorney. On August 13, 2018, before the nine-month period had elapsed, the son commenced the instant proceeding which seeks court approval of the renunciation as required where the person for whom the attorney-in-fact acts is under a disability (see EPTL §2-1.11[d][6]).1 Attached as an exhibit to the petition is the original renunciation (the “Renunciation”) and supporting affidavit (see EPTL §2-1.11[c] [2]). The court is satisfied that jurisdiction is complete and all notice requirements as set forth in subparagraph (c)(2) have been met. The guardian ad litem for the husband supports petitioner’s application. He concludes that, notwithstanding that the attorneys-in-fact would share all assets that are the subject of the Renunciation, they “appear to be doing exactly what [the husband] would do under the circumstances and, accordingly, are acting in his best interests.” The court concurs. The husband has more than sufficient assets without the renounced property to continue to live with the high level of care that he currently receives, and the tax savings which would result from the Renunciation are significant — approximately $1 million. Moreover, it is clear that the husband is close to his step-children, entrusting them to act as his attorneys-in-fact and bequeathing to each of them in his own will $500,000, as his “son” and “daughter,” as well as his residuary estate in the event decedent predeceased. Were the only issue whether the Renunciation is in the husband’s best interests, the court would grant the application without further ado. However, there remains another issue, ably raised by the guardian ad litem, and that is whether a renunciation made by a duly authorized attorney-in-fact and requiring court authorization is timely where the renunciation is filed and an application for such authorization is made within the nine-month period expires, but court authorization is obtained after the nine-month period. The effective date of the Renunciation here is important because the attorneys-in-fact will seek treatment of the renunciation as a qualified disclaimer under Section 2518 of the Internal Revenue Code, which, unlike EPTL §2-1.11, does not allow for an extension beyond the nine-month period. EPTL §2-1.11(c)(2) provides that a renunciation is effective “as of the date of…filing, notwithstanding that notice [of the Renunciation] may thereafter be required by the court.” However, the statute does not specifically address the situation here, where a renunciation by an attorney-in-fact requires court authorization to be effective. In this circumstance, the statute is unclear as to whether court authorization is a prerequisite to filing the renunciation. Subparagraph six of paragraph (d) states only that such a renunciation by an attorney-in-fact of a person under a disability “shall not be effective unless it is further authorized by the court with which the renunciation must be filed under subparagraph two of paragraph (c)….” In the absence of the Legislature’s specifically providing that court authorization of a renunciation under EPTL §2-1.11(d)(6) is a prerequisite to filing, this court will not construe the statute to impose such a requirement. To do so would create a bifurcated system for filing renunciations. Individuals whose renunciations do not require court approval would have the entire nine-month period to file their renunciations, since they would be effective upon filing under EPTL §2-1.11(c) (2). However, where, as here, the renunciation requires court authorization, an application would have to be made well before the nine-month period has elapsed in order to ensure timeliness and, even then, timeliness would be beyond the petitioner’s control and instead subject to 1) the court’s responsibilities and 2) the need to provide the guardian ad litem with sufficient time to submit his or her report (if, as here, the appointment of one is necessary). There is nothing in the statute or its Legislative history from which to deduce a legislative purpose to allow for disparate treatment of renunciations. Accordingly, this court construes EPTL 2-1.11 to allow a renunciation executed by an attorney-in-fact under circumstances requiring court authorization to be filed subject to such authorization as long as such filing occurs prior to the expiration of the nine-month period. The renunciation may be filed separately from, or as part of, a timely application for court authorization, as was the case here. However, a renunciation filed on its own can be timely only if a proceeding seeking authorization is commenced within the nine-month period. Upon court authorization, the renunciation would then be considered “effective” (see EPTL §2-1.11[h]). The court is mindful that nunc pro tunc relief is not available to render a renunciation timely when it has been filed outside the nine-month period (see e.g. Matter of Engel, NYLJ, December 6, 2001, at 24, col 4 [Sur Ct, NY County 2001] [citation omitted]). However, because the court construes EPTL §2-1.11 as contemplating the filing of a renunciation within the nine-month period subject to the outcome of an application for authorization, those cases are not implicated. This court’s decision in Matter of Fernandez, NYLJ, Sep. 24, 2008, at 40, col 1 [Sur Ct, NY County 2008] is not to the contrary. There, the executor of decedent’s estate sought authorization to renounce decedent’s interest in his wife’s estate, as well as an extension of time to file such renunciation. The renunciation had been executed exactly nine months after the wife’s death and was presented for filing that day, but, unlike here, it was not accompanied by an application for court authorization. Under that circumstance, the court did not accept the renunciation for filing. The executor then sought court authorization after the nine-month period had elapsed, asking that, if authorized, the renunciation be deemed to have been filed nunc pro tunc within the nine-month period. The court denied petitioner’s request for nunc pro tunc relief, instead exercising its discretion to authorize the petitioner to file the renunciation outside the nine-month period. Based upon the foregoing, the petition is granted. The effective date of the Renunciation is August 13, 2018, the date this proceeding, with the Renunciation attached, was filed with the court. The award to the guardian ad litem has been fixed in a separate order. This decision constitutes the order of the court. Dated: September 25, 2019
