IN RE: the ESTATE OF Peggy Wu MAULL (2018)

Order, Surrogate's Court, New York County (Rita Mella, S.), entered on or about March 8, 2017, which denied respondents co-executors' motion for summary judgment disqualifying petitioner as decedent's surviving spouse on grounds of abandonment, unanimously reversed, on the law, with costs, and the motion granted.

A surviving spouse has a right of election under the will of the decedent unless it is satisfactorily established that the spouse abandoned the decedent and that the abandonment continued until the time of death (EPTL 5–1.2[a][5] ).  To challenge a spouse's right of election, something more than mere departure from the marital abode and living separate and apart is required.  The one seeking to impose the forfeiture must demonstrate that the abandonment was unjustified and that it was without the consent of the other spouse (see Matter of Riefberg, 58 N.Y.2d 134, 138, 459 N.Y.S.2d 739, 446 N.E.2d 424 [1983] ).

Here, the court properly determined that respondents satisfied their initial burden of demonstrating that petitioner abandoned decedent and that the abandonment was unjustified in that it was the result of orders of protection against him in favor of decedent (first obtained almost seven years before her death) based on his acts of domestic violence.  In opposition, petitioner failed to raise a triable issue of fact concerning decedent's consent to his removal from the marital abode given his misconduct (Matter of Dunn, 26 Misc.3d 1208[A], 2009 N.Y. Slip Op. 52686[U], 2009 WL 5227533 [Sur. Ct., Nassau County 2009] see also James v. James, 13 A.D.3d 583, 585–587, 786 N.Y.S.2d 336 [2d Dept. 2004, Miller, J., concurring] ).  Furthermore, petitioner's affidavit and deposition testimony demonstrated his resolve not to return to the marital abode, except to obtain his personal belongings, even after the expiration of the orders of protection.