Tuesday, February 3, 2009

Leonard Link: Manhattan Surrogate Recognizes Same-Sex Marriage in Probate Proceeding

Leonard Link: Manhattan Surrogate Recognizes Same-Sex Marriage in Probate Proceeding

Manhattan Surrogate Recognizes Same-Sex Marriage in Probate Proceeding

New York County Surrogate Kristin Booth Glen issued a decision on January 26 in Matter of the Estate of H. Kenneth Ranftle, File No. 4585-2008 (N.Y.L.J., Feb. 3, 2009), recognizing the Canadian same-sex marriage of J. Craig Leiby and the late H. Kenneth Ranftle in a probate proceeding. Contrary to a ruling issued last year by Queens County Surrogate Robert Nahman, who expressed doubt in Will of Alan Zwerling, 2008 N.Y. Misc. LEXIS 5651, 240 N.Y.L.J. 49 (September 9, 2008), about whether a Canadian same-sex marriage would be recognized in a New York probate proceeding in the absence of a ruling on the question by the Appellate Division for the 2nd Department (in which Queens County is located), Surrogate Glen expressed no such reservation, even though there is similarly no ruling yet by the Appellate Division for the 1st Department (in which Manhattan is located).

Rather, applying established principles of New York marriage recognition law and citing the 4th Department’s decision from last February 1 in Martinez v. County of Monroe, 50 App. Div. 3d 189 (2008), Surrogate Glen concluded that "Mr. Leiby is decedent’s surviving spouse and sole distributee," so there was no need for formal notification of Ranftle’s surviving siblings about the pendency of the proceeding, and Surrogate Glen signed the probate decree, allowing Mr. Ranftle’s last will and testament to go into effect.

The potential impact of this first decision by an elected New York Surrogate to recognize a same-sex marriage contracted out-of-state is huge. A surviving spouse as sole distributee would be automatically entitled to inherit if the decedent passed away without leaving a will. Under the state’s Estates, Powers and Trusts Law, Sec. 4-1.1, a surviving spouse of an intestate decedent who is a sole distributee inherits the entire estate. If the intestate decedent also had children, they are distributees as well, and the surviving spouse gets half of the estate plus $50,000, the rest going to the other distributees. If a married person without children dies leaving a will, the only person who can contest the will is the surviving spouse. By contrast, if an unmarried person dies leaving a will, those who would inherit as distributees if there were no will are entitled to be notified of the probate proceeding so they can intervene to protect their potential interest in the estate.

If an unmarried person dies with a will, then next of kin are entitled to be notified of any probate proceeding, since they would inherit if the will were held invalid. This was the situation in the Zwerling case last fall, where the Queens County Surrogate, questioning the validity of the decedent’s same-sex marriage, required that decedent’s parents be notified as next of kin so they could decide whether to contest the will. As it turned out, Alan Zwerling’s parents were happy to waive their rights and allow their son’s will to be probated without contest.

Leiby and Ranftle were partners for more than twenty years. Last spring, after the Martinez decision and Governor David Paterson’s directive to state agencies concerning recognition of same-sex marriages, they decided to go to Canada to marry, confident that their marriage would be legally recognized in New York. Their ceremony was performed in Montreal on June 7, 2008.

Mr. Ranftle passed away on November 1, 2008. He was survived by his spouse and three siblings, two of whom are also gay, incidentally. According to Mr. Leiby, Mr. Ranftle was one of five brothers, four of whom were gay and all of whom were close to Leiby and Ranftle. Ranftle’s parents are both deceased. Due to the court’s recognition of his marriage, Ranftle’s will was able to go through probate quickly without any need to involve his surviving brothers in the proceeding.

The Ranftle Estate is represented by the Manhattan law firm of Weiss, Buell and Bell.

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