Elective Share Claim Upheld - Post-Death Challenge to Marriage Rebuffed

In Matter of Berk, 2008 NY Slip Op 28247 (Decided July 3, 2008) (Sur. Ct. Kings Co.) Brooklyn Surrogate Diana Johnson upheld a spouse's elective share claim in the face of a challenge to the competence of a 100 year old decedent's marriage to his 47 year old nurse, twelve months before his death. The Court reasoned that even if the marriage could be successfully annulled, EPTL 5-1.2 provides that a spouse is ineligible only if a "final decree or judgment of divorce, annulment, declaration of nullity or dissolution of marriage recognized as valid under New York law was in effect when the deceased spouse died." Hence, it rejected the estate's argument that if the marriage is annulled it will be voided nunc pro tunc and be void from inception, because under Domestic Relations Law §7 a marriage is voidable, not void if one of the parties thereto was incapable of consenting to the marriage for want of understanding -- and a voidable marriage is only void from the time its nullity is declared by a court.