IN RE: the Estate of Anthony S. DiPrima a/k/a ANTHONY SAMUEL DIPRIMA (2026)

In this contest over whether a surviving spouse has timely exercised her right of election, the issue is whether Florida law or New York law governs the procedure and substance of the exercise of the spouse's right of election, where the Will provides that all matters involving the "validity and interpretation" of the Will are to be governed by Florida law.

Facts

The following facts are not disputed.

The decedent Anthony S. DiPrima ("Decedent") died on January 23, 2025. At the time of his death, he was a domiciliary of the State of Florida.

He is survived by his spouse, Sarah M. DiPrima, who is incapacitated, and four children from a prior marriage: Samuel A. DiPrima, Renee DiPrima Burns, Anthony S. DiPrima, Jr., and Joseph E. DiPrima.

Sarah has two children from her prior marriage: Kimberly Chapman (now Kimberly Dawn Henry) and Jeffrey Chapman, neither of whom were ever legally adopted by Anthony. However, when Sarah and Decedent married in 1979, they established a household and jointly raised the six children from their respective marriages, all of whom at the time were under the age of eighteen.

As Sarah has declined in recent years and lacks capacity, her daughter Kimberly has been acting on her behalf throughout this proceeding as Sarah's agent under a Power of Attorney dated May 1, 2023.

On April 28, 2022, Anthony executed a Last Will and Testament. On the same day he also executed the "Amendment and Restatement of the Anthony S. DiPrima Revocable Trust ("Trust")." The Will and Trust were drafted by Florida counsel and executed in Florida.

Paragraph 11.6 of the Will, states that "[a]ll matters involving the validity and interpretation of this Will are to be governed by Florida law."

Section 24 of the Trust provides that "Florida law shall govern and control all matters involving the validity, interpretation, construction, and meaning (or effect) of the Trust, as well as the administration of the Trust."

The Trust makes a bequest of a minimum of $2,000,000.00 to a Marital Deduction Trust for the benefit of Sarah, to be increased by the amount necessary to minimize (to the greatest extent possible) any estate taxes owed by Decedent's estate.

It is estimated that the Trust will be funded with approximately $2,734,684.00. In addition, Decedent has left approximately $765,394.00 to Sarah through joint and beneficiary-designated assets. Despite the elaborate estate planning performed by Decedent through his Florida counsel, Sarah was never asked to sign - and did not sign - a waiver of her right of election.

After Decedent passed away, his son, Samuel, filed a petition to probate the Will in Monroe County on March 3, 2025. This court accepted the petition pursuant to SCPA § 1605 upon the affirmation of counsel that the decedent owned property - a vehicle and personal property - in Monroe County and upon the Waivers and Consents of all necessary parties to the petition.

A Decree granting probate was issued on April 29, 2025, and Letters Testamentary issued to Samuel.

On October 16, 2025, Kimberly, acting under her authority as attorney-in-fact on behalf of the decedent's spouse, filed a "Notice of Election of Surviving Spouse" purporting to be an exercise of the "personal right of election . . . pursuant to EPTL 5-1.1-A(d)(1)." (NY St Cts Elec Filing [NYSCEF] Doc No.28).

On November 4, 2025, Samuel petitioned for an Order "dismissing" the Notice of Election.

On January 6, 2026, Kimberly filed an "Answer and Counter-Petition" as attorney-in-fact. Attached to the Answer is an exhibit entitled "NOTICE OF ELECTION BY SURVIVING SPOUSE (AMENDED)."

The amended notice of election states:

I, Kimberly Dawn Henry, as authorized agent for Sarah M. DiPrima as her attorney-in-fact under a Power of Attorney, do hereby exercise the right of election given to Sarah pursuant to Florida Statutes § 732.201 and § 732.2125 as an alternative to New York EPTL § 5-1.1-A, to take Sarah DiPrima's elective share of the estate of the decedent, subject to approval of the Court as being in the best interests of Sarah during her probable lifetime.

(NYSCEF Doc # 43).

The original Notice of Election contains the following paragraph:

"This Notice of Right of Election is only made necessary by the Estate to provide the decedent's surviving spouse a full disclosure of assets and personal liabilities that may adversely affect her."

The amended version does not.

The "Counter-Petition" requests that the Notice of Election (or the Amended Notice of Election) "be deemed to timely assert a right to an elective share under Florida law and be approved;" and that "the Court determine that Sarah's election of her spousal share is in her best interest during her probable lifetime."

It is undisputed that the exercise of this elective share would enrich Sarah's estate for the benefit of her children (Decedent's step- children) at the expense of Decedent's beneficiaries and children.

It is contended by the Respondent that there is another purpose — to provide for Sarah's "best interest" in her declining years by moving more money into her estate. How much more she needs, beyond what the trust and non-probate assets provide, to pay for her continuing care for the remainder of her life expectancy is not stated.

Petitioner filed a "Reply to Counter-Petition."

Discussion

The issue as framed by the respondent, whether Florida's requirements for an election to take the elective share are substantive or procedural, need not be reached at all. EPTL § 5-1.1A(c)(6), which states that New York's right of election is not available if the surviving spouse was not domiciled here (Sarah was not) seems to dispel any doubt that Florida law applies in its entirety.

Assuming it doesn't, the court will proceed to analyze whether Florida's deadlines for filing are procedural or substantive.

Pursuant to New York's Estates, Powers and Trusts Law § 5-1.1-A(d)(1), a surviving spouse seeking to elect against the Will of her late spouse must file a "notice of election" within six months from the date of issuance of letters of administration by serving it on the estate fiduciary. The time may be extended by an order of the surrogate's court. If the spouse defaults and fails to file the notice or a request for extension, the spouse may petition for relief from the default upon a showing of reasonable cause. The court may even extend the time to make an election beyond two years upon a showing of good cause.

Here, Kimberly, the attorney in fact for her incapacitated mother Sarah, served a written notice of election within the six-month window provided for under New York law.¹

However, under Florida law, which the decedent's Will says shall govern "[a]ll matters involving the validity and interpretation"² of the Will, an attorney in fact can exercise the spousal right of election on behalf of the spouse but only "with approval of the court having jurisdiction" and only upon a determination that "the election is in the best interests of the surviving spouse during the spouse's probable lifetime" (Fla. Statutes Stat. § 732.2125[2]), a requirement entirely absent from New York law and jurisprudence.

Accordingly, before filing the spousal election, the attorney in fact "must (emphasis added) petition the court . . . for approval to make the election." (Fla. Stat. §Fla. Prob. R. 5.360) 732.2125). To be clear, the right of election, when filed by an attorney in fact, cannot be exercised without court approval.

The election must be made within six months of the service of the "notice of administration" on the surviving spouse or the attorney in fact (Fla. R Stat. § 732.2135 [1]). However, the attorney in fact may "petition the court for an extension of time for making the election," which may be granted "for good cause shown" (Fla. Rules 732.2135[2]).

The petition for an extension must be filed within the six months allowed for the spousal election (id.)

Kimberly, the attorney in fact, did not petition the court to seek approval to file the spousal election. Her filing would have complied with the deadline for exercise of a personal right of election under New York law pursuant to EPTL § 5-1.1-A(d)(1), but she did not request an extension of time within which to file the petition for approval under Florida law (see Harmon v. Williams, 596 So 2d 1139 [Fla. Dist. Ct. App. 1992]).

Petitioner argues Florida law governs the exercise of a right of election in all respects — the requirement of court approval, the six-month deadline for filing the election (after court approval is granted), the requirement that any motion for an extension be made by motion or petition before the expiration of the six-month period, and the necessity of a showing that the election is in the "best interests" of the surviving spouse.

According to Petitioner, Florida law governs because:

(1) Paragraph 11.6 of the Will states that "All matters involving the validity and interpretation of this Will are to be governed by Florida law."

(2) Section 24 of the Amendment and Restatement of the Anthony S. DiPrima Revocable Trust, executed on April 28, 2022," provides that "Florida law shall govern and control all matters involving the validity, interpretation, construction, and meaning (or effect) of the Trust, as well as the administration of the Trust."

(3) The surviving spouse was a domicile of New York at the time of decedent's death (see EPTL § 5-1.1A[c][6])³ and consequently cannot make an election, since the decedent did not elect in his Will to have the disposition of his property in New York governed by New York laws.

(4) The decedent died a domiciliary of the State of Florida.

Respondent Sarah, the surviving spouse, through her agent Kimberly, concedes that Florida law governs her election of the elective share. She acknowledges that she needs to obtain court approval before she can elect to take the elective share, which approval hinges on a determination that the exercise of the right of election would be in the "best interest" of the spouse.

However, she argues that New York law governs the procedure for exercising her right of election. Thus, her notice of election, served within the six-month period allowed by New York law, was timely. No petition seeking court approval is required to file a notice of election.

The court disagrees.

Florida's requirements for "an election to take an elective share" by an agent on behalf of a surviving spouse, including the period within which the election must be filed, are substantive in all respects.

Florida's statutory scheme is entirely different from New York's. As outlined above New York requires only the service and filing of a "notice" of an intent to take an elective share. The term "notice" in this context is not much different, and can be analogized to, a "summons with notice" (CPLR Rule 305), or a "Notice of Claim" (see e.g. NY Gen Mun Law § 50-e). As with those two examples of a "notice," the filing of the notice of election does not finally determine the right to elect, it merely preserves the right for a future determination. The exercise of a right can and is often contested, for example, by the existence of pre-nuptial agreement that purports to waive the right (see Matter of Henken, 150 AD2d 447, 447 [2d Dept 1989]).

Florida does not use the term "notice." There is an "election" (Fl Probate Rules 5.360[a]). If an agent wants to make the election, he must obtain court approval. If no approval is secured, no election can be taken.

The approval does not preserve the right to make an election, as does the "notice" filing in New York. Rather, it is a final determination made after consideration of whether the election is in the best interest of the surviving spouse. Any analogy to a statute of limitations, which is often deemed procedural (see Portfolio Recovery Assoc., LLC v King, 14 NY3d 410, 416, [2010]) is mistaken, because New York's deadline works to preserve a right, whereas Florida's six month period is the deadline for a final determination.

The weight of case law supports the distinction.

While procedural law pertains "to the remedy rather than the right", a time limitation contained within a statute that creates or qualifies a specific right constitutes a substantive "limitation of the right itself" (Matter of Tanges v Heidelberg N. Am., 93 NY2d 48, 54-55 [1999] quoting Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]). New York courts classify matters as procedural only where "absolutely necessary" (Lewis v Dicker, 118 Misc 2d 28, 30 [Sup Ct, Kings County 1982]) and will not apply local procedural rules if they would be "outcome determinative" (A/S J. Ludwig Mowinckels Rederi v Dow Chem. Co., 25 NY2d 576, 581 [1970], citing Garrett v. Moore-McCormack Co., 317 U.S. 239, 246-249 [1942]; Guaranty Trust Co. v. York, 326 U.S. 99, 109 [1945]). Consequently, this court cannot utilize New York procedure to expand a foreign statutory right that is substantively time limited.

It is apparently Florida public policy that no election can be made by an agent without court approval and a court's consideration of whether the election is in the "best interest" of the spouse. Given that the testator was a domiciliary of Florida, the spouse continues to be a domiciliary of Florida, the Will (and Trust) were drafted in Florida, Florida has an interest in the administration of spousal elections and seeing that elections filed by an agent are actually in the "best interest" of the spouse, and within the applicable time limits (see generally In re Estate of Clark, 21 NY2d 478 [1968] [applying law of Decedent's domicile to the right of election for surviving spouse despite original probate in New York State, explaining Virginia "has the predominant, if not the sole, interest in the protection and regulation of the rights of the person to persons involved" and therefore should be the law that is invoked"] see also Restatement (Second) of Conflict of Laws § 265 (1971) (stating "the forced share interest of a surviving spouse... is determined by the law that would be applied by the courts of the state where the deceased spouse was domiciled at the time of his death").

No case law or even commentary can be found that articulates Florida's public policy interest in requiring a "best interest" showing. Is it a Medicaid planning device, intended to prevent an agent from electing against the estate and thus jeopardizing Medicaid eligibility? Or does Florida not want an agent to be able to make an election that would benefit herself and other stepchildren? Here, under the terms of the Trust and the Will, the spouse will be the beneficiary of a Trust funded with more than two million dollars as well as more than $700,000.00 in non-probate assets that pass to her, which at her age seems to be more than enough on the face of it to provide for her future needs. She has dementia, and it is conceded she has no ability to enjoy the money or even benefit from the money that would come to her if the election were allowed.

The respondent tacitly acknowledges — seems shy about admitting — that the (future) pecuniary benefit to her and her siblings is the reason she filed the election. As she states in the "original" Answer, "This Notice of Right of Election is only made necessary by the Estate to provide the decedent's surviving spouse a full disclosure of assets and personal liabilities that may adversely affect her." This modest rationale for the relief requested is omitted from the Amended Answer. Presumably, there was a change of heart, and the Amended Answer, on behalf of Sarah, but also on behalf of the future interests of herself and her siblings, reflects her desire - she wants the money.

Accordingly, it is held that that the right of an attorney-in-fact to elect on behalf of a spouse under Florida law can only be perfected through the successive acts of petitioning for judicial approval and filing a notice of election within the strict timing mandated by the domicile's statute. As Respondent failed to seek such approval or otherwise toll the limitation period as provided by Florida Statute § 732.2135(4) before the expiration of six months from the appointment of the Petitioner as Executor, the right of election was extinguished.

Counsel for the Petitioner shall submit an Order.

Dated: June 23, 2026

Rochester, New York

Hon. Christopher S. Ciaccio

Surrogate, Monroe County

FOOTNOTES

1.    See In re Lando, 11 Misc 3d 866, 868 (Sur Ct Rockland Cnty2006), holding that a person holding a Power of Attorney is authorized to exercise the right of election of a surviving spouse, even though not enumerated in EPTL 5-1.1A(c)(3) as one of the persons who ay make an election on behalf of the surviving spouse.

2.   The court muses whether "validity and interpretation" relate to the exercise of a right of election, but since the Respondent, as indicated below, concedes that Florida substantive law applies, the issue will not be discussed.

3.   EPTL 5.1A(c)(6) reads: "The right of election granted by this section is not available to the spouse of a decedent who was not domiciled in this state at the time of death, unless such decedent has elected, under paragraph (h) of 3-5.1, to have the disposition of his or her property situated in this state governed by the laws of this state."

Christopher S. Ciaccio, S.