IN RE: James M. WINTER (2026)

DECISION & ORDER

In a proceeding pursuant to SCPA 1001 to obtain letters of administration for the estate of James M. Winter, the petitioner appeals from an order of the Surrogate's Court, Putnam County (Joseph J. Spofford, Jr., S.), dated May 16, 2025. The order granted the objection of Pamela Winter to the petition for letters of administration, denied the petition for letters of administration, and held the cross-petition of Pamela Winter for letters of administration in abeyance for future determination.

ORDERED that the appeal from so much of the order as held the cross-petition of Pamela Winter for letters of administration in abeyance for future determination is dismissed, as no appeal lies therefrom (see CPLR 5701[a][2]); and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, the objection of Pamela Winter to the petition for letters of administration is denied, and the matter is remitted to the Surrogate's Court, Putnam County, for further proceedings on the petition; and it is further,

ORDERED that the appellant is awarded one bill of costs.

In December 2024, the petitioner, the surviving spouse of a decedent, filed a petition for letters of administration. Thereafter, Pamela Winter, the sister of the decedent (hereinafter the sister), filed an objection to the petition pursuant to EPTL 5-1.2, seeking disqualification of the petitioner as the surviving spouse based on allegations of abandonment. The sister also cross-petitioned for letters of administration. The petitioner opposed the sister's cross-petition and claim of abandonment on the ground that her separation from the decedent was with the consent of the decedent and did not constitute abandonment.

In an order dated May 16, 2025, the Surrogate's Court granted the sister's objection, denied the petition for letters of administration pursuant to EPTL 5-1.2, and held the sister's cross-petition for letters of administration in abeyance for future determination. The petitioner appeals.

The appeal from so much of the order as held the sister's cross-petition in abeyance for future determination is dismissed, as the cross-petition remains pending and undecided (see Matter of Property Located at 162nd Ave. between Shellbank Basin & 95th St. in the Borough of Queens, 235 AD3d 761, 763–764; Matter of Padin v. Padin, 103 AD3d 729, 730).

The Surrogate's Court erred in disqualifying the petitioner pursuant to EPTL 5-1.2 from receiving letters of administration. Under SCPA 1001, a surviving spouse has priority over all other distributees of the intestate (see id. § 1001[1][a]; Matter of Pilapil, 172 AD3d 1073, 1074–1075; Matter of Jordan, 89 AD3d 1085, 1085). Here, the petitioner established that she had priority to receiving letters of administration over all other distributees of the decedent by demonstrating that she married the decedent on October 21, 2006, and remained legally married to him on the date of the decedent's death (see Matter of Pilapil, 172 AD3d at 1074–1075).

The Surrogate's Court improperly granted the sister's objection, which alleged that the decedent should be disqualified from receiving letters of administration on the ground of abandonment. “The burden to establish abandonment is and remains at all times upon those asserting it” (Matter of Maiden, 284 N.Y. 429, 431; see Matter of Bertolatus, 280 App.Div. 871, 871).

Here, the sister failed to meet her burden of establishing abandonment. The sister's objection, contained solely within an attorney affirmation in opposition to the petition for letters of administration, supported by, inter alia, unsigned and unsworn letters and emails, as well as unauthenticated Facebook posts, was insufficient to meet the burden to establish disqualification of the petitioner based on abandonment pursuant to EPTL 5-1.2(a)(5) (see SCPA 303; People v. Loncke, 244 AD3d 1245, 1246; Matter of McLaughlin, 97 AD3d 1051, 1053; Matter of Delgatto, 82 AD3d 1230, 1231).

The petitioner's remaining contention is without merit.

GENOVESI, J.P., FORD, VOUTSINAS and GOLIA, JJ., concur.