Annuities Held Subject to Surviving Spouse's Elective Share

Resolving an open issue concerning whether an annuity contract is a testamentary substitute subject to a surviving spouse's right of election, the Appellate Division, Fourth Department in Matter of Zupa, 43 AD3d 1036, __ N.Y.S.2d __ (4th Dep't 2008) has held that it is. The uncertainty was caused because the legislative history of EPTL §5-1.1-A indicates that the Legislature intended to exclude insurance contracts from the definition of testamentary substitutes. The Court concluded that since annuities are not insurance reliance on the Legislative intent to exclude insurance contracts is mistaken.