Opinion
180-P/07.
Decided January 16, 2008.
Richard M. Duignan, Esq. for Roy Griffin, petitioner.
In this SCPA 1421 proceeding to determine the validity or effect of the decedent's surviving spouse's right to an elective share under EPTL 5-1.1-A, the initial determination to be made by the court under SCPA 1421(2) is whether or not the application will be entertained. If the application is entertained, the court will then order the issuance of the citation requested by the spouse, directing all interested parties to show cause why the surviving spouse should not take an elective share against an insurance policy on the decedent's life which designates the decedent's infant nephew as the beneficiary.
The spouse's contention that life insurance is a testamentary substitute under either EPTL 5-1.1-A(b)(1)(F) or (G) has been considered and rejected by numerous courts (Matter of Boyd, 161 Misc 2d 191 and its progeny: Matter of Bono, NYLJ, Feb. 13, 1998, at 34, col. 5; Matter of Martorana, NYLJ, Oct. 11, 1995, at 31, col 4; Matter of Callaghan, NYLJ, Sept. 23, 1994, at 26, col 5; Matter of Boisaubin, NYLJ, Sept. 15, 1994, at 29, col 5; Matter of Cioinigel, NYLJ, Aug. 3, 1994, at 29, col 2). At this late date, the court is constrained to follow these precedents. Therefore, the court declines to entertain this application on the ground that the spouse's right to an elective share against life insurance must be denied as a matter of law.
Surrogate Radigan, in deciding Matter of Boyd ( 161 Misc 2d 191), noted that, if the inquiry were limited to the ordinary meaning of the language used in EPTL 5-1.1-A(b)(1)(F), a case could be made for holding that this statute included life insurance as a testamentary substitute. Such a holding would be based upon the following: (1) life insurance falls within the transfers listed in EPTL 5-1.1-A(b)(1)(F) as testamentary substitutes, to wit, "any disposition of property or contractual arrangement made by the decedent" under which the decedent retained at the date of death "a power to revoke such disposition or a power to consume, invade or dispose of the principal thereof;" and (2) the failure of the new statute to specifically exclude life insurance as a testamentary substitute as had its predecessor statute (EPTL 5-1.1[b][2]). Nonetheless, Surrogate Radigan concluded that the statute could be viewed as "ambiguous" on the issue of whether life insurance is a testamentary substitute and this permitted the court to consider legislative history, which he found clearly reflected a legislative intent to exclude life insurance as a testamentary substitute. He relied upon the fact that the first version of the bill that was passed by the Assembly accepted a proposal that the prior law be changed to include life insurance as a testamentary substitute. Consequently, this version of the bill explicitly stated that life insurance is a testamentary substitute and deleted the specific exclusion of life insurance as a testamentary substitute contained in its predecessor statute. However, the Senate refused to pass the version of the bill that included life insurance as a testamentary substitute and the bill as passed by both the Senate and Assembly deletes the specific inclusion of life insurance as a testamentary substitute contained in the version of the bill that was passed only in the Assembly, but fails to specifically provide whether or not life insurance is a testamentary substitute.
The court realizes that if this were a case of first impression a different result could be reached. The analysis might start by noting that the statute, without any ambiguity, clearly provides that life insurance is a testamentary substitute under EPTL 5-1.1-A(b)(1)(F) because it is a disposition or contractual arrangement under which the decedent retains the power to obtain the cash surrender value of the policy or to designate a different beneficiary, including the estate of the insured. Therefore, it could be argued that neither a strict nor liberal constructionist should attempt by judicial fiat to correct what might have been an error in drafting the legislation. This position would be buttressed by noting that excluding life insurance as a testamentary substitute would not be in accord with the overall legislative purpose of the statute both because EPTL 5-1.1-A includes more dispositions and contractual arrangements as testamentary substitutes than its predecessor and because no public policy reason readily comes to mind, aside from the profits of the insurance industry, for treating life insurance differently from all other contractual arrangements or dispositions which are governed by subdivision (b)(1)(F).
Given the passage of time and precedent, the above analysis cannot provide any solace for the decedent's spouse in this proceeding. If a court had held that life insurance was a testamentary substitute shortly after September 1, 1992, the effective date of EPTL 5-1.1-A, the Legislature would have had the opportunity, if it so desired, to amend the statute by specifically excluding life insurance as testamentary substitute. However, considering that more than 15 years have elapsed since EPTL 5-1.1-A became effective, during which period numerous cases have held that life insurance is not a testamentary substitute, and the Legislature has not amended the statute to change the judicial determinations, it would be tantamount to judicial legislation for this court, at this time, to reach a contrary result.
For the reasons stated above, this is the decision and order of the court exercising its discretion in favor of not entertaining the application and, accordingly, declining to issue the requested citation.