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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Herman GREIFF, deceased. Helen Greiff, Respondent; Wallace J. Greiff, et al., Appellants.

Decided: September 29, 1997

Before MANGANO, P.J., and COPERTINO, ALTMAN and GOLDSTEIN, JJ. Stanley M. Nagler and Ronnie M. Schindel, New York City, for appellants. Miller and Korzenik, LLP, New York City (Jeffrey Craig Miller, of counsel), for respondent.

In a proceeding pursuant to EPTL 5-1.1, inter alia, to determine the validity and effect of the petitioner's exercise of her right of election, the appeal is from an order of the Surrogate's Court, Kings County (Bloom, S.), dated August 14, 1996, which granted the petition.

ORDERED that the order is reversed, on the law, with costs payable by the petitioner, the petition is denied, and the proceeding is dismissed.

 A duly executed antenuptial agreement is given the same presumption of legality as any other contract, and is not burdened by a presumption of fraud simply because the parties subsequently enter into a confidential relationship (see, Panossian v. Panossian, 172 A.D.2d 811, 569 N.Y.S.2d 182;  Eckstein v. Eckstein, 129 A.D.2d 552, 514 N.Y.S.2d 47;  see also, Matter of Phillips, 293 N.Y. 483, 58 N.E.2d 504;  Matter of Sunshine, 51 A.D.2d 326, 381 N.Y.S.2d 260, affd. 40 N.Y.2d 875, 389 N.Y.S.2d 344, 357 N.E.2d 999).   The party seeking to invalidate an antenuptial agreement bears the burden of producing evidence showing fraud, “[b]ut, in the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed.  * * * Such a presumption must have as its basis evidence of overreaching-the concealment of facts, misrepresentation or some form of deception” (Matter of Phillips, supra, at 491, 58 N.E.2d 504).

 Contrary to the Surrogate's Court's determination, the petitioner failed to establish that her execution of an antenuptial agreement whereby she waived her right to an elective share was procured through the decedent's “fraud or overreaching” (Panossian v. Panossian, supra, at 812, 569 N.Y.S.2d 182).  The record does not support the petitioner's claim that she was not advised of the effect of the subject antenuptial agreement, failed to comprehend it, or entered into it unwillingly (see, Matter of Davis, 20 N.Y.2d 70, 281 N.Y.S.2d 767, 228 N.E.2d 768;  Panossian v. Panossian, supra;  Eckstein v. Eckstein, supra;  Matter of Sunshine, supra;  see also, Forsberg v. Forsberg, 219 A.D.2d 615, 631 N.Y.S.2d 709).  Accordingly, the petitioner is not entitled to an elective share against the decedent's estate (see, EPTL 5-1.1[f][1] ) and the petition should have been denied.

In light of the above determination, the remaining contentions need not be addressed.


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