Matter of S.B.E.

[*1] Matter of S.B.E. 2006 NY Slip Op 51797(U) [13 Misc 3d 1212(A)] Decided on September 25, 2006 Sur Ct, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 25, 2006
Sur Ct, Bronx County

IN THE MATTER OF THE GUARDIANSHIPS OF S.B.E. and D.E., Infants



583-M/06



Davidson, Dawson & Clark, LLP (Alan D. Seget, Esq. of Counsel) for Avi Elishis, petitioner

Sanford S. Stevens, Esq., Guardian Ad Litem for S.B.E. and D.E., Infants

Lee L. Holzman, J.

These are applications by the guardian of the property of the infants, their father, for permission to partially renounce the infants' interests in their paternal grandfather's estate pursuant to EPTL 2-1.11(c)(1) to enable the grandfather's estate to take advantage of the maximum marital deduction for estate tax proposes. The petitioner will only renounce his interest in his father's estate in the event that these applications are granted.

The grandfather died intestate, on January 3, 2006, a domiciliary of Kings County, with a large estate. He was survived by a spouse and three children, including the petitioner. The decedent's three children wish to partially renounce their intestate shares to effect the tax savings for the estate. However, the decedent now has five grandchildren; namely, the petitioner's two children, who are subject of these applications, and three children of the petitioner's sister for whom guardians of the property have been appointed in Kings County, where similar applications are pending in that Surrogate's Court.

The partial renunciations by the petitioner and his sister would result in their being deemed to have predeceased their father (EPTL 2-1.11[d]) so the renounced shares would devolve to the infants rather than the surviving spouse (EPTL 4-1.1[a][1] and EPTL 1-2.16). Thus, the parent's renunciations would be useless for tax purposes unless the infants are also permitted to renounce. The two grandchildren who were conceived prior to the decedent's death but born thereafter would be entitled to a distributive share in the event that their respective parents renounced [EPTL 4-1.1(c)]. D. E. is one of the after-born infants. The petitioner requests that each infant be permitted to renounce any amount above $25,000 that each infant would otherwise be entitled to receive from the grandfather's estate. Unless this request is granted, the renunciations will not be made, the infant [*2]grandchildren will receive nothing and the estate will lose the tax advantage of taking the maximum marital deduction permitted by law. It is alleged that, if the renunciations are properly made, the tax savings will amount to in excess of $3,000,000.

The guardian ad litem for both infants indicates that it is clearly in the best interests of his wards to grant the application. Pursuant to the long line of Surrogate's Court cases permitting renunciation in similar situations (Matter of Kramer, 101 Misc 2d 782 [1979]; Matter of Katz, NYLJ, Dec. 19, 2002, at 27, col 2; Matter of Selzer, NYLJ, Oct. 15, 1999, at 36, col 6; Mater of Rosen, NYLJ, Mar. 24, 1995 at 29, col 6), the court finds that is in the best interests of each infant to renounce any amount above $25,000 to which that infant would otherwise be entitled upon the renunciation by the infant's father. Accordingly, the applications are granted. The guardian ad litem waived notice of settlement of the orders to be entered herein.

Orders signed.

SURROGATE