The Challenge Of Finding Admissible Evidence In Abandonment Proceedings | Farrell Fritz, P.C. | #itsecurity | #infosec


Some of the most interesting estate litigation issues arise in proceedings to determine a surviving spouse’s entitlement to an elective share, particularly when there are claims of abandonment.  Under EPTL § 5-1.1-A(a), “a personal right of election is given to the surviving spouse to take a share of [a] decedent’s estate.”  Section 5-1.2(a) provides that a husband or wife is a “surviving spouse,” within the ambit of EPTL § 5-1.1-A, “unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that . . . [the] spouse abandoned the deceased spouse, and such abandonment continued until the time of death” (EPTL § 5-1.2[a][5]).

To establish abandonment, the departure of a spouse from the marital home must be unjustified and without the consent of the now deceased spouse (Matter of Maiden, 284 NY 429, 432 [1940]). The question of abandonment is one of fact, and often a close one (In re Estate of Riefberg, 58 NY2d 134, 136 [1983]).

Establishing facts in an abandonment proceeding is often difficult due to CPLR 4519, also known as the Dead Man’s Statute. To greatly oversimplify CPLR 4519, an interested party is barred from testifying regarding transactions and communications with a deceased person.  Therefore, disinterested witnesses are often critical in determining whether the surviving spouse abandoned the deceased spouse.

Most marriages are very private, so it can be difficult to find disinterested witnesses who can competently testify regarding the marriage. While there may be a friend or neighbor that can testify that the remaining spouse consented to the departure of their spouse from the marital home, this very personal information is often not widely shared, or perhaps even accurate.  One can certainly imagine a scenario where a husband does not consent to his wife’s departure from the marital home. However, to save face the husband tells a friend that he consented to his wife’s departure, or even told his wife to leave, causing huge issues for our hypothetical husband in an abandonment proceeding.

Ruff v Ruff, 91 AD2d 814 [3d Dept 1982] notes the difficulty presented by the Dead Man’s Statute: “[t]he issues raised in such a determination are difficult enough to resolve between living spouses, but almost impossible to objectively establish where, as here, the testate partner is dead and the survivor is in most respects incompetent to testify to ‘transactions’ involving the decedent”.  In Ruff, the departing spouse was found to have had the consent of the remaining spouse due to the testimony of various witnesses demonstrating that the marriage was disharmonious and that while the departing spouse frequently left home without explanation prior to the couple’s permanent separation in 1963, those departures from the marital home were never over decedent’s objection.

Another interesting issue arising in abandonment proceedings is the admissibility of pleadings and testimony from a divorce proceeding when the decedent dies during the pendency of the divorce proceeding.

Generally, under Domestic Relations Law 235 public inspection of pleadings and testimony in a divorce proceeding is prohibited, unless authorized by Court Order. “However, those protections do not extend where the party requesting disclosure of the divorce proceeding can ‘articulate and particularize the relevance of information sought to an important pending matter’” (Estate of Sharon Centner, 2019 NYLJ LEXIS 982, *5 [Sur Ct, Richmond County 2019] [citations omitted]). The Centner Court cited Janecka v Casey, 121 AD2d 28 [1st Dept 1986] where matrimonial records were unsealed because the decedent committed suicide and her plaintiff husband commenced litigation against his wife’s former physician and hospital.

In Centner the surviving husband moved for, among other things, a protective order barring his daughter from using documents from a divorce proceeding between the surviving husband and his late wife.  Surrogate Titone held that the shield of Domestic Relations Law 235 should yield because “it would seem contradictory and unjust not to allow discovery and possible admissibility of the divorce proceeding as evidence for or against [the claims of abandonment] [Id.]).

The Surrogate Titone further noted that:

It would be supremely ironic to allow a spouse, who, by seeking a divorce under the no fault statute, has implicitly represented under oath that neither party was at fault for the irretrievable breakdown of the marriage, to later claim that his/her departure from the marital residence was justified by the misconduct or fault of the other spouse because a change of circumstances (i.e., the death of the other spouse) renders it financially beneficial for him/her to do so (Id.).

These are just some of the many interesting issues that arise in abandonment proceedings.

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