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BECAUSE PETITIONER-WIFE DID NOT COMPLY WITH THE RELEVANT PROVISIONS OF THE EPTL, SHE WAS NOT ENTITLED TO HER ELECTIVE SHARE OF HER DECEASED HUSBAND’S DEATH BENEFIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-wife was not entitled to her elective share of her deceased husband’s death benefit from the New York City Employees’ Retirement System (NYCERS). Her husband’s father was the named beneficiary. Because petitioner did not comply with the relevant provisions of the Estate, Powers and Trusts Law (EPTL), NYCERS was justified in distributing the funds to her husband’s father:

A surviving spouse’s election to take a share of the decedent’s estate “must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent’s death” (EPTL 5-1.1-A[d][1]). A surviving spouse must file written notice of such election in the Surrogate’s Court that issued the letters testamentary or of administration (see EPTL 5-1.1-A[d][1]).

The provisions of EPTL 5-1.1-A(b) “shall not prevent a corporation or other person from paying or transferring any funds or property to a person otherwise entitled thereto, unless there has been served personally upon such corporation or other person a certified copy of an order enjoining such payment or transfer made by the surrogate’s court having jurisdiction of the decedent’s estate or by another court of competent jurisdiction” (EPTL 5-1.1-A[b][4] …]). EPTL 5-1.1-A(b)(4) further provides that a “corporation or other person paying or transferring any funds or property described in clause (G) of subparagraph one of this paragraph,” which includes death benefits, “to a person otherwise entitled thereto, shall be held harmless and free from any liability for making such payment or transfer, in any action or proceeding which involves such funds or property.”

Here, it is undisputed that the petitioner did not serve NYCERS with an order enjoining it from paying the entirety of the decedent’s death benefit to the named beneficiary, Ghulam. Accordingly, pursuant to EPTL 5-1.1-A(b)(4), NYCERS “shall be held harmless and free from any liability for making such payment” in the instant proceeding. Matter of Baig, 2021 NY Slip Op 01763, Second Dept 3-24-21

 

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