You are here: / / The Second of Two Ceremonial Marriages Is Presumed Valid/Property Owned...
, ,

The Second of Two Ceremonial Marriages Is Presumed Valid/Property Owned by Persons Not Legally Married, But Who Are Described as Married in the Deed, Own the Property as Tenants In Common with Right of Survivorship Pursuant to the Estates, Powers and Trusts Law (EPTL)

The Second Department determined plaintiff’s complaint was properly dismissed.  Decedent was plaintiff’s mother by her mother’s first marriage (in Haiti).  Plaintiff alleged that her mother’s subsequent marriage to defendant (in the US) was void because her mother never divorced plaintiff’s father. On that basis, plaintiff alleged that her mother and defendant owned real property as tenants in common, not tenants by the entirety, and therefore half of the property passed to her upon her mother’s death.  The Second Department held that the second marriage was presumed valid and plaintiff did not rebut the presumption.  The court further noted that, even if decedent and defendant were not legally married, the property would have been owned as a joint tenants with right of survivorship, by virtue of Estates Powers and Trusts Law (EPTL) 6-2.2(d):

Where as here, there are two ceremonial marriages at issue, the second marriage is presumed valid, requiring proof from the challenger that the first marriage was not terminated … .

The existence of a rebuttable presumption in favor of the defendant established his entitlement to judgment as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact.

Further, even if [plaintiff’s mother] were not legally married to the defendant, the deed to the subject property nevertheless created a joint tenancy, with the right of survivorship … . The deed to the subject property was executed in 1980. Accordingly, EPTL 6-2.2(d), as amended in 1975, governs … . Pursuant to EPTL 6-2.2(d) “[a] disposition of real property . . . to persons who are not legally married to one another but who are described in the disposition as husband and wife creates in them a joint tenancy, unless expressly declared to be a tenancy in common.” Joseph v Dieudonne, 2015 NY Slip OP 00338, 2nd Dept 1-14-15

 

You might also like
IN THIS DIVORCE PROCEEDING, IT WAS AN ABUSE OF DISCRETION TO DENY INTERIM ATTORNEY’S FEES TO THE NONMONIED SPOUSE (SECOND DEPT).
PLAINTIFF STATED A CAUSE OF ACTION FOR DEFAMATION PER SE (DEFENDANT ALLEGEDLY STATED PLAINTIFF ENGAGED IN MONEY LAUNDERING); ALTHOUGH DEFENDANT DEMONSTRATED THE ACTION INVOLVED “PUBLIC PETITION AND PARTICIPATION” WITHIN THE MEANING OF THE SLAPP STATUTE, PLAINTIFF DEMONSTRATED THE DEFAMATION ACTION HAD A SUBSTANTIAL BASIS IN LAW; THEREFORE THE SLAPP STATUTE SHOULD NOT HAVE BEEN APPLIED TO DISMISS THE COMPLAINT (SECOND DEPT).
Plaintiff Assumed the Risk of Stepping on Running Treadmill
“Common Law Arbitration” Explained/”Common Law Arbitration” Waived by Seeking Relief in a Counterclaim
Defendant Did Not Waive the Statute of Limitations Defense, Pled In Its Answer, by Failing to Assert It in a Pre-Answer Motion to Dismiss—Although Defendant’s Post-Answer Motion Was Ostensibly Brought Pursuant to CPLR 3211(a)(5), the Parties Laid Bare Their Proof and Supreme Court Properly Treated the Motion as One for Summary Judgment Pursuant to CPLR 3212 Seeking Dismissal of the Complaint as Time-Barred
TOWN RESIDENTS CANNOT COMPEL TOWN TO ISSUE A FORMAL DETERMINATION OF THEIR ZONING COMPLAINT AND CANNOT COMPEL THE ZONING BOARD OF APPEALS TO REVIEW THE FAILURE TO ISSUE SUCH A DETERMINATION (SECOND DEPT).
PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).
FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Photographs Demonstrated Defect Was “Trivial” and Not Actionabl... Remainderman Was Entitled to the Tax and Insurance Payments Made on Behalf of...