6.55 - F. Abandonment Of The Deceased Spouse

• Jurisdiction: New York

F. Abandonment of the Deceased Spouse

A person is disqualified as a surviving spouse if such person abandoned the deceased spouse and such abandonment continued until the time of the decedent’s death.⁷⁵⁸ The party alleging abandonment must prove all the necessary elements thereof.⁷⁵⁹ The elements of abandonment are those that would support a judgment of separation.⁷⁶⁰ It must be shown that the spouses lived apart and that the departing spouse left without justification, without intent to return and without the consent of the other spouse.⁷⁶¹ Consent of the decedent to the spouse’s departure is a defense to a charge of abandonment.⁷⁶² Moreover, there is no abandonment where the departing spouse does so involuntarily, at the request of the other spouse.⁷⁶³

Open and notorious unfaithfulness does not by itself constitute abandonment.⁷⁶⁴ Cruelty and inhumanity alone are not equivalent to abandonment, nor is conduct endangering the life and health of a spouse per se equivalent.⁷⁶⁵

The determination of abandonment is a factual one.⁷⁶⁶ Where the decedent’s assault of the spouse prompts the spouse to leave, the departure has been held justified and not an abandonment.⁷⁶⁷ A reconciliation of the parties following abandonment reestablishes the departing party as a qualified surviving spouse and preserves his or her right of election.⁷⁶⁸

Where the departing spouse enters a valid or invalid second marriage with a third party and thereafter openly cohabitates with that third party, the New York State courts have generally held the second marriage to be an act of abandonment.⁷⁶⁹ The current definition and standard for abandonment has been criticized by at least one recent court, which stated that “[c]hanging understandings of what constitutes family, demographic shifts, and alterations in economic dependence strongly suggest the need both to reappraise the spousal disqualification statute and the interests it serves: administration, intestacy and spousal election. One may hope that the bar and the legislature will hear and heed this call.”⁷⁷⁰

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Notes:

^[758] . EPTL 5-1.2(a)(5).

^[759] . In re Young, 30 Misc. 3d 1204(A), 958 N.Y.S.2d 649 (Sur. Ct., Broome Co. 2010); In re Atiram, 25 Misc. 3d 1241(A) (Sur. Ct., N.Y. Co. 2009), aff’d 83 A.D.3d 1055 (2d Dep’t 2011).

^[760] . In re Lapenna, 16 A.D.2d 655, 226 N.Y.S.2d 497 (2d Dep’t), appeal dismissed, 12 N.Y.2d 671, 233 N.Y.S.2d 463 (1962); In re McAfee, 28 Misc. 3d 1225(A), 958 N.Y.S.2d 308 (Sur. Ct., Bronx Co. 2010).

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