Opinion
November 29, 1988
Appeal from the Surrogate's Court, New York County (Marie M. Lambert, S.).
Petitioner and decedent were married in 1941 and separated in 1983. On November 1, 1983, petitioner brought an action for divorce based on allegations of cruel and inhuman treatment. On April 23, 1984, petitioner and decedent entered into a handwritten reconciliation agreement pursuant to which petitioner agreed to withdraw and discontinue her divorce action, and decedent agreed, inter alia, to bequeath to petitioner one third of his estate outright regardless of their marital status at the time of his death. Thereafter, petitioner moved to set aside the discontinuance and restore the divorce action to the calendar. This motion was denied, and petitioner then commenced an action against the decedent for a declaratory judgment to the effect that the reconciliation agreement was invalid and unenforceable. Following a trial in July 1986, Justice Kristin Booth Glen upheld the validity of the agreement by decision and judgment dated September 21, 1987.
On October 18, 1987, Mr. Goldman died, leaving an estate which has been conservatively valued at between $700,000,000 and $1,000,000,000. The decedent also left a last will and testament dated August 3, 1987, naming petitioner and respondents as beneficiaries, with respondents Jane H. Goldman and Allan Howard Goldman designated executors.
By petition dated January 27, 1988, petitioner applied for interim advance payments, pursuant to SCPA 2102 (5), against her claimed beneficial interest in the estate. The petition asserts three bases for petitioner's entitlement to an advance payment: under the terms of the reconciliation agreement; as a beneficiary under the will's provision for a marital trust; and, pursuant to a widow's right to an elective share. In further support of her application, petitioner demonstrated that she was in need of an advance, in light of her inability to meet such obligations as taxes owed on her residences and counsel fees, and the fact that she has been compelled to borrow large sums to meet prior and ongoing liabilities and expenses.
In opposition, respondents asserted, inter alia, that if petitioner were to receive an allowance, the children, as named beneficiaries under the will, should also receive an allowance. In addition, the respondents challenged their mother's status under the will by claiming that she was not a "surviving spouse" pursuant to EPTL 5-1.2 (a) (5) because of her "abandonment" of decedent. The Surrogate granted the children's request for interim payments, but denied petitioner's request "without prejudice to its being renewed when it is established that she is a `surviving spouse' pursuant to EPTL 5-1.2".
In Matter of Milbank ( 49 A.D.2d 848), we held that SCPA 2102 (5) empowers the Surrogate with the discretion to authorize an advance payment against a claimed beneficial interest in an estate, even when the question of spousal status is at issue, providing that the claimant is willing to post a full refunding bond. Upon consideration of all the facts and circumstances attending this matter, including the substantial size of the estate, and the receipt of advances by all four children, we are persuaded that petitioner's application warrants reconsideration as per Matter of Milbank (supra).
Accordingly, the order appealed from is modified to the extent that the matter is remanded for reconsideration of petitioner's application for an advance payment consonant with her demonstrated need, with any advance to be conditioned upon petitioner's posting of a full refunding bond, and is otherwise affirmed.
Concur — Carro, J.P., Asch, Milonas and Wallach, JJ.