6.51 - B. Divorce, Annulment Or Dissolution Under Decree Valid In New York State

• Jurisdiction: New York

B. Divorce, Annulment or Dissolution Under Decree Valid in New York State

A husband or wife is disqualified as a surviving spouse if

[a] final decree or judgment of divorce, of annulment or declaring the nullity of a marriage or dissolving such marriage on the ground of absence, recognized as valid under the law of this state, was in effect when the deceased spouse died. ⁷³⁴

It does not matter that the decree was obtained outside New York State. If the decree is recognized as valid in New York, neither spouse can claim an elective share.⁷³⁵

Termination of marriage generally is recognized as valid in New York State if the termination was valid wherever it was obtained.⁷³⁶ A New York court usually will give full faith and credit to a decree obtained in another state if the other state had jurisdiction to issue such decree.⁷³⁷ Moreover, a decree obtained in a foreign country will be recognized as valid in New York State if it was obtained bilaterally and the foreign court, under its own law, had jurisdiction to issue a decree.⁷³⁸

The surrogate’s court may determine the validity of any decree terminating a marriage.⁷³⁹ A divorced spouse has the right to challenge the validity of the decree, and such spouse must be cited in a probate proceeding.⁷⁴⁰ A decree entered after the decedent’s death does not affect the election rights of the surviving spouse, since they became fixed upon the decedent’s death.⁷⁴¹ However, several recent cases have held that if a decree terminating a marriage is entered after the decedent’s...