Siran Arrathoon, Petitioner-Respondent, v. Maro A. Goldstone, Respondent-Appellant. (2008)

Order, Surrogate's Court, New York County (Renee R. Roth, S.), entered October 9, 2007, which, after a nonjury trial, dismissed respondent's claim that petitioner widow had abandoned decedent and was disqualified to elect against his will as his surviving spouse, unanimously affirmed, with costs.

The court properly determined that respondent, who was petitioner and decedent's daughter, did not meet her burden of demonstrating that petitioner abandoned decedent during his lifetime (see Matter of Riefberg, 58 N.Y.2d 134, 459 N.Y.S.2d 739, 446 N.E.2d 424 [1983];  Matter of Maiden, 284 N.Y. 429, 31 N.E.2d 889 [1940];  Matter of Gardner, 176 A.D.2d 142, 574 N.Y.S.2d 28 [1991], lv. dismissed 78 N.Y.2d 1124, 578 N.Y.S.2d 880, 586 N.E.2d 63 [1991] ).   The evidence established that petitioner and decedent, who had been married for 65 years, were each forced by circumstances to live with, or near, the child who could provide them with emotional and practical support, that neither spouse abandoned the other, and that their separate living arrangements were necessitated by their advanced age and failing health.

We have considered respondent's remaining contentions and find them unavailing.