Matter of Bordell

Summary

The New York Appellate Division, Third Department, affirmed an order denying a guardian ad litem's motion for summary judgment concerning the validity of a surviving spouse's waiver of her elective share. The court held that the waiver substantially complied with EPTL 5-1.1-A despite referencing an outdated statutory provision, and that alleged lack of legal advice or financial disclosure did not establish invalidity as a matter of law. The court also concluded that the unresolved cross-motion was effectively denied.

Holdings

1. A written waiver of a surviving spouse's elective-share rights is not invalid merely because it cites the former statutory provision, EPTL 5-1.1, rather than the applicable provision, EPTL 5-1.1-A, when the instrument otherwise substantially complies with the statutory requirements and demonstrates an intent to waive rights in the decedent's estate.
2. A waiver of a surviving spouse's elective-share rights is not invalid as a matter of law solely because the spouse was not advised by counsel or was not provided information concerning the decedent's assets; absent fraud or other misconduct, parties are bound by their signatures.
3. Summary judgment was properly denied because the moving party failed to establish as a matter of law that the waiver was invalid and failed to overcome the presumption that it was properly executed.

Questions Presented

1. Whether the surviving spouse's written waiver of rights in the decedent's estate was invalid as a matter of law because it referred to the superseded statutory provision EPTL 5-1.1 rather than EPTL 5-1.1-A.
2. Whether the waiver was invalid as a matter of law because the surviving spouse allegedly made a false statement concerning consultation with counsel and was not provided information about the decedent's assets before signing.
3. Whether the Surrogate's Court properly denied the guardian ad litem's motion for summary judgment.

Disposition

affirmed