Uncertainty of Marriage Recognition Stalls Probate of Gay Man’s Estate

This case awaits the outcome of our case int he second appellate department.

Leonard Link: Uncertainty of Marriage Recognition Stalls Probate of Gay Man’s Estate

Uncertainty of Marriage Recognition Stalls Probate of Gay Man’s Estate


Queens County Surrogate Judge Robert L. Nahman has decided that the lack of a definitive ruling by the Appellate Division, Second Department, on whether same-sex marriages contracted in Canada are legally recognized in New York requires delaying the probate of the will of Alan Zwerling, under which the sole beneficiary is his surviving husband, until Zwerling’s parents, who also survive him, can be made parties to the case.


Nahman’s ruling, published in the New York Law Journal on September 9, makes no mention of the decision by the Appellate Division, 4th Department, in the case of Martinez v. Monroe County Community College, decided in February, which ruled that same-sex marriages contracted in Canada are recognized under New York’s common law rule for recognition of foreign marriages, even though under New York practice the Martinez decision is, for now, a statewide precedent. Monroe County tried to appeal the Martinez ruling prematurely, and the Court of Appeals sent the case back to the trial court for further proceedings, but it is likely that the County will eventually seek to appeal again to the state’s highest court. In the meantime, however, Martinez is supposed to be respected by trial courts as a state-wide precedent, at least until a different department of the Appellate Division produces a contrary ruling.


Instead of following Martinez, Nahman cited Funderburke v. New York State Department of Civil Services, a 2nd Department ruling from late March that did not take a position on whether such marriages must be recognized under New York law, but vacated a trial court decision that had refused to recognize such a marriage. The trial decision was vacated on the ground that it became moot when the defendant agreed to extend spousal benefits to the same-sex spouse of a retired Long Island public school teacher as a result of a change of policy. The 2nd Department panel agreed to vacate the trial court ruling because subsequent events rendered it a mere “advisory opinion” and leaving it in place might cause problems in later cases. But the Zwerling Estate ruling now shows just such a problem.


The rules governing probate proceedings differ depending upon whether somebody dies leaving a legal spouse behind. Because New York law entitles a surviving spouse to receive a share of the estate, regardless whether the spouse is named in the will, the surviving spouse is a necessary party to the probate of the will. In this case, Zwerling’s brother was designated to be the Executor of the estate, and he submitted to the court a petition for probate attaching the will (which names Zwerling’s husband as the sole distibutee) and a copy of the marriage certificate from Ontario. Normally, that would be the end of the story, and assuming all the papers were in order, the Surrogate would take the necessary steps to probate the will and authorize distribution of the assets.


However, if an unmarried person dies leaving a will, the law specifies that the person’s legal heirs are “necessary parties” to the probate proceeding, even if they are not named as beneficiaries in the will, since they would have the right to inherit as a matter of law if there is some reason to invalidate the will. For a person who dies without leaving a surviving spouse or offspring, surviving siblings and parents are legal heirs who are “necessary parties.”


In this case, Zwerling’s brother is the proponent of the will, and presumably has no objections to it. He filed an affidavit of heirship, required by probate procedures, indicating that Zwerling’s parents also survive him.


Surrogate Nahman stated, “Ordinarily, where a decedent is survived by a spouse, the decedent’s parents are not parties to the probate proceeding. It appears, however, 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. In order to ensure that the decree in this proceeding is final and not subject to a subsequent jurisdictional attack, the Court finds that the parents of the decedent are necessary parties.”


Nahman’s decision does not mention where the parents reside, and says nothing about whether Zwerling was estranged from his parents, or whether they have a friendly or hostile relationship to his surviving husband. Depending on these factors, Nahman’s ruling may present a serious barrier to Zwerling’s husband receiving his inheritance, because it gives the parents an open invitation to make trouble about probating the will. The opinion also does not mention the amount of assets in the estate. If they are sizable, there might be a real temptation for parents – especially estranged parents – to make trouble. On the other hand, if Zwerling’s parents are kindly disposed, they could simply consent to be joined as parties, submit to the jurisdiction of the court, and let the proceeding go to its conclusion without making any fuss.


This decision reinforces the importance of settling the question of recognition for same-sex marriages in New York once and for all, especially as many same-sex couples from New York have married in Canada, California or Massachusetts, or may be expected to do so, and this ruling clouds the ability to obtain routine probate of their wills. The easiest solution would be for the state Senate to take up and pass the marriage bill that has already cleared the Assembly, allowing same-sex marriages in New York and make recognition of foreign same-sex marriages routine. The legislature could also pass a more limited bill providing for foreign marriage recognition. Or the Court of Appeals could, at the first opportunity, approve the 4th Department’s interpretation of the common law marriage recognition rule from the Martinez case.