Opinion
355694.
Decided July 21, 2009.
Hirsch Hirsch, Esqs., Attorney for Petitioner, Hempstead, New York.
In this proceeding to obtain letters of administration for the estate of Stephanie Revonda Dunn, Karen Globuschutz, temporary administrator of her mother's estate, has petitioned the court for special relief, to bar Allan Bruce Dunn, the surviving spouse of the decedent, from claiming a distributive share of the decedent's intestate estate pursuant to EPTL 5-1.2(a)(5) and 5-1.2(a)(6).
The decedent, Stephanie R. Dunn, died on January 5, 2009. The court issued letters of temporary administration to Karen Globuschutz on May 6, 2009. Ms. Globuschutz's sisters, Revonda Marie Dunn and Monica Ann Dunn, each executed waivers of citation. Jurisdiction over the parties was complete upon the service of the administration citation on Allan Bruce Dunn, the surviving spouse of Stephanie R. Dunn, at his Ohio address on April 27, 2009. Mr. Dunn defaulted by failing to appear on the return date of May 27, 2009.
Under EPTL 5-1.2 (a)(5), a surviving spouse is disqualified take from sharing in his deceased spouse's estate, "if 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." The burden of proving abandonment of the decedent by the surviving spouse is on the person alleging abandonment Matter of Rechtschaffen, 278 NY 336; Matter of Ruff, 91 AD2d 814 [3d Dept. 1982]). According to Matter of Maiden, 284 NY 429 (1940), the fact that the parties lived separately is not enough to show abandonment. "The departure of a spouse from the marital home must be unjustified and without the consent of the other spouse," ( id. at 432). The standard for abandonment under EPTL 5-1.2 (a)(5) is the same as that of the granting of a judgment of separation under the Domestic Relations Law ( Matter of Ruff, 91 AD2d 814 [3d Dept 1982]). As Surrogate Radigan noted in Matter of De Andressi, Dec. 9, 1996 at NYLJ 31, col 4 [Sur Ct, Nassau County], an "unjustified" leaving by the surviving spouse means one which is "not justified by some acts of the deceased," citing to Matter of Riefburg ( 58 NY2d 134, 138). In De Andressi, the surviving spouse, left the marital home in Florida after the decedent became ill, ostensibly to pursue business opportunities in New York. Surrogate Radigan concluded that since he never returned to live with the decedent, either in Florida or New York, his leaving of the marital home was not justified by any act of the decedent.
In this case, the arrest and subsequent incarceration of Bruce Allen Dunn from 1987-89 for the crime indicated by the petitioner, which began the separation of Mr. Dunn from the marital home, was the act of Mr. Dunn, not of the decedent. The court finds that Mr. Dunn's leaving of the decedent was unjustified.
In order for a decedent to have been abandoned by a surviving spouse without her consent, a lack of consent may be inferred. In De Andressi, the decedent, as her ill-health continued, did not hide her whereabouts, and the surviving spouse could have found her or reached her through any one of a number of relatives. The court concluded that because the surviving spouse could have contacted the decedent at any time before her death, the decedent "did not consent" to Mr. Bonomo's departure. Similarly, here the petitioner states that Ms. Dunn did not hide where she was living from Mr. Dunn after his release from prison. The court may therefore infer that Ms. Dunn did not consent to Mr. Dunn's departure. Mr. Dunn's departure, even if not voluntary due to his incarceration, was not justified by any act of Ms. Dunn, and was impliedly not consented to by Ms. Dunn, fulfilling the requirement for granting of a separation due to abandonment as required under Domestic Relations Law § 200(2).The court therefore disqualifies Mr. Dunn from taking as a surviving spouse, since he abandoned the decedent until her death.
Additionally, under EPTL § 5-1.2 (a)(6), a surviving spouse is disqualified if "a spouse, having the duty to support the other spouse, failed or refused to provide for such spouse though he or she had means or ability to do so, unless such marital duty was resumed and continued until the death of the spouse having need of support." In Matter of Bennett, ( 142 AD2d 578, [2d Dept 1988]), the court held that a surviving spouse who had left the marital apartment, and who subsequently refused to pay rent on the apartment, even though his name was on the lease and he had the means to do so, was disqualified from taking his marital share of the decedent's estate. Here, petitioner has shown evidence that Mr. Dunn, the surviving spouse in this instance, had the means to provide monetary support to Ms. Dunn, but never contacted the decedent or provided any support to the decedent over a nearly twenty-year period of time, until the decedent's death. Therefore, Mr. Dunn is also disqualified from taking from the estate of the decedent under
EPTL 5-1.2 (a)(6).
Furthermore, under SCPA § 509, "a petition or account filed in a proceeding, unless denied by an answer, objection or other proof, is due proof of the facts therein stated." Here, the respondent Mr. Dunn received service at citation pursuant to SCPA 307, which gave him notice of the petitioner's requested relief from the court. However, Mr. Dunn defaulted by not appearing on the return date. Hence, the uncontroverted facts stated in Ms. Globuschutz's affidavit as to Mr. Dunn's abandonment of the decedent, and failure to support the decedent, are established. Therefore, Mr. Dunn, is disqualified from claiming his intestate share of the estate of Stephanie R. Dunn, as a surviving spouse, EPTL 5-1.2[a][5] and [6]).
This is the decision and order of the court.
Settle decree on notice.