IN RE: Application of Solomon SAPERSTEIN (1998)

Order, Surrogate's Court, New York County (Eve Preminger, S.), entered on or about July 16, 1997, which granted respondents' motion to dismiss petitioner's application for permission to file a late notice of election pursuant to EPTL 5-1.1-A against the estate of his deceased wife, Dorothy Saperstein, unanimously affirmed, with costs.

 EPTL 5-1.1-A(e)(2) provides that to be effective, a spouse's waiver of election “must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property”.   Here, while there was no acknowledgment by the subscribing spouse during the decedent's lifetime-and any attempt to manufacture such an acknowledgment post mortem would be ineffective (see, Matter of the Estate Warren, 16 A.D.2d 505, 508, 229 N.Y.S.2d 1004, affd. 12 N.Y.2d 854, 236 N.Y.S.2d 628, 187 N.E.2d 478)-the waiver is nonetheless susceptible of being “proved” in the manner required for the recording of a conveyance of real property, as set forth in Real Property Law § 304.   The proof of execution prepared after the decedent's death by the attorney who signed the waiver as a subscribing witness is sufficient to comply with Real Property Law § 304 (see, Matter of Maul, 176 Misc. 170, 26 N.Y.S.2d 847, affd. 262 App.Div. 941, 29 N.Y.S.2d 429, affd. 287 N.Y. 694, 39 N.E.2d 301;  Matter of the Estate of Stegman, 42 Misc.2d 273, 247 N.Y.S.2d 727;  Matter of Felicetti, NYLJ, January 22, 1998, p. 31, col. 3).   As the subject waiver was, accordingly, valid, petitioner's application to elect against his spouse's estate was properly dismissed.

MEMORANDUM DECISION.