IN RE: the Irrevocable Renunciation of Denise Anne Josephs as Legatee under the Last Will and Testament of Richard Weinberger (2026)

Before the court is the unopposed Motion, dated June 19, 2026, of Denise Anne Josephs, surviving daughter of Decedent Richard Weinberger, requesting an order validating the Irrevocable Renunciation filed on March 16, 2026, or in the alternative, permitting the withdrawal thereof.

The Court considered the following documents in making this decision:

1. Notice of Motion dated June 19, 2026;

2. Affirmation of Denise Anne Josephs dated June 15, 2026, with Exhibits 1-2;

3. Affirmation in Support of Mark D. Lefkowitz, Esq. dated June 15, 2026 with Exhibits 1-4;

4. Affirmation in Support of Evan Josephs, dated June 28, 2026;

5. Affirmation in Support of Marc Josephs dated July 1, 2026;

6. Affirmation in Support of Barry Weinberger dated July 2, 2026;

7. Supplemental Affirmation in Support of Mark D. Lefkowitz, Esq. dated July 13, 2026;

8. Memorandum of Law dated July 13, 2026.

Background

Decedent, Richard Weinberger, was the owner of a residence located at 40 Skylark Drive, Spring Valley, New York (the "Residence"). At the time of his death on September 21, 2025, Decedent was disabled and his son, Barry M. Weinberger, ("Barry") lived at the Residence with him and cared for all Decedent's needs. Decedent's wife, Lillian, predeceased him in 2022. In addition to his son Barry, Decedent was survived by a daughter, Denise Anne Josephs, ("Denise" or "the Movant"). On March 9, 2026, Denise filed a petition to probate Decedent's will dated July 16, 2019. Pursuant to paragraph IV of the will, Decedent devised his property to his wife if she survived him. If his wife predeceased him, the property passed to his surviving children in equal shares, provided that the living issue of a deceased child shall take per stirpes the share his or her parent would have taken had he survived the Decedent. (Id.).

On March 9, 2026, Denise also filed an Irrevocable Renunciation Pursuant to EPTL Sec. 2-1.11and IRC Sec. 2518 (a) (the "Renunciation"). The Renunciation states that Denise has made a limited disclaimer only to her interest in the residence at 40 Skylark Drive, Spring Valley, New York. Paragraph 5 of the Renunciation states:

I understand that by exercising my right to disclaim and renounce my interest in 40 Skylark Drive, Spring Valley, New York and as a result of this limited renunciation and in full accord with my consent thereto, my brother Barry will be entitled to become the sole title holder of these premises upon transfer from my father's estate in accordance with EPTL Sec. 2-1.11. Moreover, for the purposes of and to effectuate this limited renunciation, I will be deemed to have predeceased the decedent Richard Weinberger.

Upon review of the Renunciation, on May 26, 2026, the Clerk notified counsel for Denise that pursuant to the will and to EPTL § 2-1.11, the Renunciation served to pass her interest in the Residence to her children rather than to her brother. In response, counsel indicated his intent to withdraw the Renunciation. The instant motion followed.

Discussion

The Movant seeks an order of the Court validating the Renunciation, or an order permitting withdrawal of the Renunciation.¹ Turning first to withdrawal, the Court is constrained to deny this application as the law clearly provides that a properly filed renunciation is irrevocable.

NY Est. Powers & Trust Law § 2-1.11 "Renunciation of property interests" provides the rules and procedures for renunciation of an inheritance. Pursuant to EPTL § 2-1.11 (c), a beneficiary must personally renounce a disposition in a writing that is signed, acknowledged and filed with the clerk of the Court having jurisdiction over the instrument governing the property at issue. A renunciation must be filed within nine months after the effective date of the disposition. (EPTL § 2-1.11 (c) (2)). A renunciation must include an affidavit stating that the renouncing party has not received and will not receive any consideration in money or money's worth for such renunciation from a party whose interest is to be accelerated. (Id.) A renunciation shall be effective as of the date of such filing. (Id.). Upon review, the Court finds that the Renunciation complied with each requirement of the statute and thus became effective upon filing on March 9, 2026.

Prior to the enactment of the renunciation statute New York's Surrogate Courts allowed beneficiaries to retract their renunciation of testamentary gifts absent prejudice to other beneficiaries. However, these decisions pre-date the current statutory scheme, and concern common-law renunciation of property rights as opposed to statutory disclaimers. (See, e.g., In re Angel's Will, 33 Misc 2d 122 [Kings Co. Sur. Ct. 1962]); In re Johnston's Will, 164 Misc. 469 [Kings Co. Sur. Ct. 1937]). Under a predecessor statute to EPTL § 2-1.11 a renunciation could be revoked in the discretion of the surrogate. (EPTL § 3-3.10 (f), See In re Estate of Bernstein, 92 Misc 2d 228 [Sur Ct, NY Co. 1977]). Effective as of August 11, 1978, that provision was repealed  ² and replaced by EPTL § 2-1.11  ³ (See Turano, Practice Commentary, New York Estate Admin., 2023 § 22.02, n.2).

Under EPTL § 2-1.11(h), a properly filed renunciation is irrevocable (see In re Estate of Munch, 125 Misc 2d 610 [Surr Ct Nassau Co 1984]). In Munch, Surrogate Radigan found that a renunciation, properly filed pursuant to the requirements of § 2-1.11(c)(2), is irrevocable. The Munch Court denied the application of a beneficiary to withdraw a renunciation where she argued that when she signed the renunciation she thought she was renouncing only her rights to the decedent's personal property and not her rights to the decedentss house in which she and her sister resided (see Munch, 125 Misc 2d at 610.). The Court rejected the affidavit of the administratrix consenting to the revocation (see id.). Surrogate Radigan recounted that major revisions to EPTL § 2-1.11 were adopted in 1980 to remedy conflicts between the Federal disclaimer statute (U.S. Code, title 26, § 2518) and the New York State disclaimer statute:

In 1980, the Law Revision Commission recommended to the Legislature that renunciations be made irrevocable; however, the Commission also recommended that a renouncing party be permitted to withdraw a renunciation "prior to the expiration of the tax law period [nine months after disposition]" (NY Legis Doc, 1980, No. 65 [D], p 2). The intention of the Commission was to satisfy the Federal requirements that a renunciation be irrevocable, but provide some flexibility to avoid the potential harmful effects of unequivocal irrevocability.

The New York Legislature rejected the recommendations of the Commission and the arguments against complete irrevocability and adopted the clear and unequivocal language found in EPTL 2-1.11 (subd [g]) — "A renunciation filed under this section is irrevocable." The Legislature obviously intended that renunciations be unquestionably irrevocable.⁴

(Id. at 612).

The Courts adhere strictly to the rule that renunciations are irrevocable:

As this court held in Matter of Munch (supra) when the Legislature enacted EPTL § 2-1.11, it obviously intended that renunciations be unquestionably irrevocable. This was done to ensure that renunciations under EPTL § 2-1.11 would constitute qualified disclaimers for federal estate tax purposes.

(Matter of Abu-Regiaba, 21 Misc 3d 1106[A], 2008 NY Slip Op 51986[U] [Surr Ct Nassau Co 2008]; see also, Matter of Zelouf, 183 AD3d 900 [2d Dept 2020]; Matter of Carucci, 2 Misc 3d 632, 633, 636 [Surr Ct Nassau Co 2003]; Matter of Munch, 125 Misc 2d 610, 611-612 [Surr Ct Nassau Co 1984]; but see Matter of Overgard, 5 Misc 3d 628 [Surr Ct NY Co 2004] [allowing renouncing party to retract her renunciation before executor had filed it in court]). Such adherence is mandatory. As Abu-Regiaba Court noted, to permit withdrawal of a renunciation would potentially "set a precedent which may have unintended and extremely adverse consequences . . . " to estates and the finality of their distributions" (21 Misc 3d 1106[A]).

In jurisdictions that have adopted the Uniform Disclaimer of Property Interests Act, the prevailing scheme is that a properly executed disclaimer becomes irrevocable once it satisfies the statutory formalities. Although not adopted in New York, the UDPIA has been adopted in some form by at least 19 states (see Carvalho v Estate of Carvalho, 186 Vt 112, 120 [Vt Sup Ct 2009]). In Carvalho the court held that renunciations are not revocable based on claims, such as a unilateral mistake of law, that fall short of equitable claims that would support rescission of a contract or cancellation of an instrument  ⁵ (id. at 123). Looking to sister states with similar statutory schemes, the Carvalho court held that disclaimers, even filed within the statutory time for filing disclaimers, are not revocable based upon mistake of law even if there is no prejudice (id.; see Estate of Holden v. Holden, 336 S.C. 456, 520 SE2d 322, 325 [Ct App 1999] [South Carolina appellate court held that mistake of law will not justify revocation of disclaimer]; Webb v Webb,171 W Va 614, 301 SE2d 570, 576—77 [1983] [Supreme Court of West Virginia held that negligent mistake of law on part of disclaimant and negligent mistake of fact on part of his attorney do not separately or together support revocation of disclaimer]).

In support of its application, the Movant attempts to distinguish Matter of Munch by arguing that, unlike the petitioner in Munch, who made an error as to which assets she was renouncing, the Movant here made no mistake in articulating her intentions to renounce her interest solely in the Residence. The Court agrees with the proposition that the Movant's intent to renounce her interest in the Residence is clear, however, the Movant's error is that she misunderstood the legal result of her renunciation. Despite the distinction in the two fact patterns, neither instance supports a revocation of a renunciation. Thus, Matter of Munch does not provide a basis for the Court to grant the requested relief.

The Movant's reliance upon Matter of Stanislaus Stomporowsiki, 85 Misc. 30 1241(A) [Sur. Ct. Erie Co. 2025] is also misplaced. In that case the renunciation was rejected by the Court because it expressly stated that it would serve to accelerate and enhance the interests of the renouncing beneficiary's two daughters. The court found that the beneficiary was in effect exercising control as beneficial owner of the property in direct contravention of EPTL § 2-1.11 (g). Here, the Renunciation did not serve to exert beneficial ownership of the property and there was no explicit attempt to transfer Denise's interest to Barry. Rather, the Renunciation appears to misconstrue its own effect under the will and EPTL § 2-1.11 (i.e., the passing of Denise's interest in the Residence to Denise's two sons once she was deemed to have predeceased the Decedent). This "failure to comport with the statutory mandate" (See Memo of Law at p.2) is not a proper basis for the Court to sanction the withdrawal of a properly filed renunciation.

Next, the Movant seeks to have the Court "validate" the Renunciation and permit a result that is "contrary to the explicit statutory provisions relating to the effect of a Renunciation." The Court finds this request quite quixotic (see Memo of Law at p.1). The Movant is asking the Court to ignore the plain language of both the will and the statute, which are both abundantly clear. The will provides that if Decedent's wife predeceased him, the property passed to his surviving children in equal shares, provided that the living issue of a deceased child shall take per stirpes the share his or her parent would have taken had he survived the Decedent. The statute provides "[u]nless the creator of the disposition has otherwise provided, the filing of a renunciation, as provided in this section, has the same effect with respect to the renounced interest as though the renouncing person had predeceased the creator or the decedent . . . " EPTL § 2-1.11(e).

The Movant relies upon two proceedings in which it is alleged that renunciations were accepted by the Surrogate's Court where, in each case, a beneficiary renounced and attempted to direct distribution of their interests in contravention of the statute (Aff. in Supp. ¶¶ 10, 11). It is quite possible that a Surrogate's Court accepted a renunciation that was contrary to EPTL § 2-1.11. However, a prior decision in which another court declined to follow the statute does not diminish the statute's plain language or its binding effect here, and the Court will not adopt reasoning that is inconsistent with the governing legislative mandate.

The Court is also not persuaded by speculation as to Decedent's intent outside of that which is expressed in the will (see Aff in Support ¶ 5). In fact, the affirmation acknowledges that it is not productive to speculate (id.) Similarly, the alleged complications to the Movant's personal estate planning and the purported burden upon her sons associated with homeownership are of no legal consequence (see Aff in Support ¶ 6). Movant's claim that succession to the Movant's issue under the statute is "mainly applicable where there is no expressed intent of the renouncing party contradicting the statutory result" is baffling at best (id.). The Court is frankly perplexed by this argument, which is not grounded in any legal precedent. Unsupported assertions of this nature are not persuasive and do not assist the Court in resolving the issues presented.

The irrevocability of disclaimers ensures stability in the devolution of property interests. Allowing revocation would undermine the finality and leave the affected property interests unsettled. The motion shall therefore be denied in its entirety.

All arguments not specifically addressed herein have been evaluated and deemed to be without merit.

And it is

ORDERED that the motion is DENIED in its entirety.

Dated: July 31, 2026

New City, New York

HON. KEITH J. CORNELL

Rockland County Surrogate

FOOTNOTES

1.   The Notice of Motion cites to EPTL § 2-1.11 in support of the application for an order "validating" distribution of the Movant's interest in the Residence in contravention of the statute, however, the statute does not provide authority for such an order. Nor does EPTL § 2-1.11 provide authority for an order permitting the withdrawal of a renunciation.

2.    See L. 1977, ch. 861.

3.   EPTL § 4-1.3, which addressed renunciations under intestacy, was also replaced by EPTL § 2-1.11. (Id. at n.3).

4.   Former subsection (g) was redesignated as subsection (h) by L.2010, c. 27 § 1. (McKinney's Con Laws of NY, Estates, Powers & Trusts Law § 2-1.11 [2012]).

5.   The Court ultimately remanded the case to the trial court for a determination of the facts because it observed that there were suspicious circumstances around the execution of the renunciation. (Id.at 127-8).

Keith J. Cornell, S.