Gay, Married and Testate in Queens

In Queens, New York, the executor of a gay person’s estate must follow different procedures than the executor of a straight person’s estate, so says The Honorable Robert L. Nahman, in a decision issued last month.

Because of the uncertain validity of same-sex marriages in New York, Surrogate Nahman ruled, the parents of a decedent survived by a same-sex spouse have standing to contest the decedent’s will, even though the parents of a decedent survived by an opposite-sex spouse would not have standing.

To give context to Surrogate Nahman’s ruling, consider the statutory background.   Under New York law, a decedent’s “distributees” are entitled to be served with process in a probate proceeding.   NY SCPA 1403.   In other words, “distributees” have standing to contest the will.   Who is a distributee?   According to NY EPTL 1-2.5, a decedent’s “distributees” are his or her intestate takers.   Who are they?

• If the decedent is survived by a spouse and issue, the spouse and issue, are the decedent’s intestate takers.
• If the decedent is survived by a spouse and no issue, the decedent’s intestate taker is the spouse.
• If the decedent is not survived by a spouse or issue, the decedent’s surviving parent(s) are the decedent’s intestate takers.

NY EPTL 4-1.1.   Ordinarily, this means that if a decedent is survived by a spouse, then the parents are not parties to the probate process.   But at least for now, in Queens County (NY), different rules apply to same-sex surviving spouses.   In the case of the Estate of Alan Zwerling (reported in the New York Law Journal on September 9, 2008) Surrogate Nahman declined to admit Mr. Zwerling’s will to probate, until his parents were served, even though the petitioner (the nominated executor, the decedent’s brother) submitted a copy of the decedent’s marriage certificate from a ceremony in Ontario, Canada.   The decedent was survived by his spouse.

Surrogate Nahman reasoned that “the validity of same-sex marriages has not been definitively determined by the Appellate Division of the Supreme Court of New York, Second Department (see Funderburke v New York State Dep’t. of Civ. Serv., 49 AD3d 809 [2008])” and therefore the only way “to ensure that the decree in this proceeding is final and not subject to a subsequent jurisdictional attack” was to make Mr. Zwerling’s parents parties to the proceeding.  

It is hard to know whether the Surrogate’s decision is motivated by an abundance of caution, or whether it sets up a direct challenge to Governor David Patterson’s directive that New York state agencies must recognize same-sex marriages performed in other jurisdictions.   In this particular case, citing Mr. Zwerling’s parents may (or may not) make any difference; it could be that they have no objections to the probate of Mr. Zwerling’s will.   But if they do, the probate of Mr. Zwerling’s estate will be delayed and more expensive than if Mr. Zwerling had been survived by an opposite-sex spouse.   The law should not countenance that sort of fundamental unfairness.

-Bridget Crawford