Matter of Licht

[*1] Matter of Licht 2006 NY Slip Op 52212(U) [13 Misc 3d 1242(A)] Decided on November 28, 2006 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 12, 2006; it will not be published in the printed Official Reports.

Decided on November 28, 2006
Surrogate's Court, Nassau County

In the Matter of the Estate of Morton E. Licht, Deceased.





343726

John B. Riordan, J.

Submitted for decision is the issue of the order of death of two decedents, husband and wife, who both died on August 5, 2006.

Muriel Licht and Morton Licht were 83 and 85, respectively, when they died on August 5, 2006.Their deaths were apparently caused by carbon monoxide poisoning because Mr. Licht may have left his car running in the garage attached to the house. The unfortunate couple were married more than fifty-nine years when they died.

Muriel Licht was pronounced dead at 3:51 p.m. while Morton Licht was pronounced dead at 3:57 p.m. on August 5, 2006. The petitioners in the two probate proceedings ask the court to determine that the decedents, in fact, died simultaneously. A finding of simultaneous death is important in light of estate tax planning done on behalf of Mr. and Mrs. Licht. It should be noted that the ultimate beneficiaries under the wills of both Mr. and Mrs. Licht are the probate petitioners (the sons of the decedents) and neither would be adversely affected by a determination of simultaneous death.

Because the value of Morton Licht's probate assets was significantly greater than those of Muriel, Article FIFTH of his Will provides:

"If any of the legatees or beneficiaries hereunder and I shall die under

such circumstances (whether or not as a result of a common accident

or disaster) that there shall be reasonable doubt as to the order of our

respective deaths, then I direct that it shall be conclusively deemed

that such legatee or beneficiary shall have predeceased me, except

in the case of my wife, Muriel Licht, who shall be deemed to have

survived me."

The petitioners are concerned that the order of death established in the death certificates would result in rendering Article FIFTH ineffective meaning that none of Morton's assets would pass to Muriel thereby almost doubling the combined federal and estate taxes on the two estates. [*2]The court need not take any position with regard to the estate tax implications here. However, the petitioners have shown to the court's satisfaction that the time entries on the death certificates were mere happenstance and should not be considered dispositive of the order of death. The time of deaths were noted in the death certificates based upon the sequence in which the attending medical examiner went to the decedents' respective bedrooms. Moreover, the petitioners have supplied the court with a letter from the County's Deputy Chief Medical Examiner who conducted the autopsies on both Mr. and Mrs. Licht. It is his opinion that it cannot be determined which decedent died first.

Given the facts and circumstances of these tragic deaths, the court grants the petitioners' application and finds that there is a reasonable doubt as to the order of the deaths of Morton Licht and Muriel Licht and that Article FIFTH of Morton Licht's will is therefore operative.

This is the decision and order of the court.

Decree.

Dated: November 28, 2006

JOHN B. RIORDAN

Judge of the

Surrogate's Court