Carlos Fernandez

[*1] Matter of Fernandez 2003 NY Slip Op 51597(U) Decided on December 5, 2003 Surrogate's Court, Bronx County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2003
Surrogate's Court, Bronx County

In the Matter of the ESTATE OF CARLOS FERNANDEZ, Deceased.



File No. 602-P/02

Lee L. Holzman, J.

This is an application under EPTL 5-1.1-A (d)(2) for an order relieving the petitioner of her default in filing her notice to take an elective share as decedent's surviving spouse within the time provided in subparagraph (d)(1) and extending her time to file the notice of election. The question presented is whether the provision in EPTL 5-1.1-A (d)(1) that "an election under this section must be made ... in no event later than two years after the date of decedent's death" precludes the granting of this uncontested application which was not filed until almost three years after decedent's death.

The decedent's distributees are the petitioner, who is his second wife, and two adult children, issue of his first marriage. The decedent's will was admitted to probate on November 4, 2002 and letters testamentary issued to decedent's brother. Under the circumstances that existed on the date of decedent's death, February 8, 2000, his estate is bequeathed in equal shares to his two children. The petitioner, a resident of Mexico, concedes that she was served with a citation in the probate proceeding by mail on July 29, 2002. She did not file the instant application until January, 2003.

The petitioner's primary reasons for her delay in seeking to file the notice of election are that counsel for the executor allegedly had informed her that the entire estate consisted of joint accounts that were not testamentary substitutes because the decedent had created them prior to their marriage and that she did not receive the probate citation until more than two years after the date of decedent's death. Although it took the petitioner a considerable period of time, she eventually obtained jurisdiction over the executor and the two beneficiaries of the estate, and they have interposed no opposition to the relief requested.

The pertinent provisions of EPTL 5-1.1-A provide as follows:

(d) Procedure for exercise of right of election.

(1) An election under this section must be made within six

months from the date of issuance of letters testamentary or

of administration, as the case may be, but in no event later

than two years after the date of decedent's death.

(2) The time to make such election may be extended

before expiration by an order of the surrogate's court from

which such letters issued for a further period not exceeding

six months upon any one application. If the spouse defaults [*2]

in filing such election within the time provided in subpara-

graph (d)(1), the surrogate's court may relieve the spouse

from such default and authorize the making of an election

within the period fixed by the order, provided that no decree

settling the account of the personal representative has been

made and that twelve months have not elapsed since the

issuance of the letters. An application for relief from the

default and for an extension of time to elect shall be made

upon a petition showing reasonable cause and on notice to

such persons and in such manner as the surrogate may

direct.

The above provisions were enacted in 1992 (L. 1992, Ch. 595) and the only difference from the prior statute (see EPTL 5-1.1 [e]) is the addition of the language in subdivision (d)(1) "but in no event later than two years after decedent's death". Although there have been cases which discussed other aspects of the two-year period in the 1992 legislation (see Matter of Levin, 181 Misc 2d 868 and Matter of Weber, N.Y.L.J., January 5, 1999, p. 35, col. 4), the only case dealing directly with the issue of whether the two-year period acts as a statute of limitations barring any relief thereafter is Surrogate Radigan's decision in Matter of Rosenkranz, N.Y.L.J., November 21, 2000, p. 30, col. 5. Although Surrogate Radigan noted that "there is significant commentary" stating that the two-year period "was intended to create an absolute time bar to filing after that date", he nevertheless held that, at least with regard to testamentary assets, an application for an extension under subdivision (d)(2) that was not filed until 40 months after decedent's death could be granted on the rationale that "the language of the second sentence of subparagraph (d)(2) modifies and permits relief from the times provided in EPTL 5-1.1-A (d)(1) of both six months from the issuance of such letters and two years after decedent's death...."

The result in Matter of Rosenkranz, supra, appears equitable in light of the fact that none of the interested parties was surprised by the spouse's seeking an elective share inasmuch as they had been engaged in contested probate and discovery proceedings as well as extensive settlement negotiations since shortly after decedent's death. Nevertheless, the same result might have been reached on other grounds than the statutory interpretation adopted by the court. That interpretation might be questioned by arguing that that the reason that the Legislature left subdivision (d)(2) unchanged from prior law is because it was of the opinion that the 1992 enactment of (d)(1) containing the language "but in no event later than two years after decedent's death" reflects a clear intent that the two-year period was to act as a statute of limitations. In any event, inasmuch as neither the beneficiaries nor the executor of the estate has opposed the relief requested, the court does not have to either embrace or reject the holding in Matter of Rosenkranz, supra, in order to grant this application. This is so because even if the two-year period is deemed a statute of limitations, any party who wants to rely upon the statute of limitations as a defense to a claim must plead it as an affirmative defense (CPLR 3018 [b]). Accordingly, in the absence of this issue being raised by the respondents, the court will not, sua sponte, bar the application for an extension of time to file a notice of election with regard to assets that have, or will, pass to the respondents who have defaulted.

The petitioner has shown the following "reasonable cause" to warrant granting the [*3]extension: 1) she was not notified of the probate proceeding until more than two years after decedent's death; 2) she was given misleading information about the decedent's assets; and 3) she had difficulty in obtaining New York counsel from her residence in Mexico. Accordingly, the application is granted. This decision constitutes the order of the court extending the petitioner's time to serve and file her notice of election until February 27, 2004. Of course, this determination is without prejudice to the rights of any party who was not served with process in this proceeding and would be adversely affected by this determination as a result of their having received a testamentary substitute or otherwise.

SURROGATE

Decision Date: December 05, 2003