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