Separation Agreement With W1 Trumps W2's Elective Share Claim

The issue in Matter of Calligaro, __ Misc. 3d __ (2008 NY Slip Op 28128, decided April 7, 2008) (Sur. Ct. Bronx Co.) was the impact of the decedent's obligation under a property separation agreement with his former wife to designate their daughter "as beneficiary of any pension/ retirement survivor benefits until her emancipation," upon his surviving spouse's right of election under EPTL 5-1.1-A(b)(1)(G), to treat the pension "survivorship" benefits payable to the decedent's daughter as a testamentary substitute.

Surrogate Holzman held, based upon balancing competing public policy and equitable considerations that resulted in an expansion of the spouse's elective share under EPTL 5-1.1-A, that the decedent's obligation under the separation agreement to provide for pension/retirement survivor benefits for his daughter until she became emancipated resulted in a binding obligation until the daughter's emancipation that is enforceable after his death and that to allow the surviving spouse to elect against the pension/retirement survivor benefits payable until the daughter's emancipation would contravene the mandate of EPTL 5-1.1-A(b)(5), that the spouse's right to an elective share against testamentary substitutes "shall not impair or defeat the rights of creditors of the decedent with respect to any matter as to which any such creditor has rights"