Nassau County Surrogate John Riordan’s decision in the Matter Of Joseph Seviroli has been affirmed by the Appellate Division of the New York State Supreme Court. The case is reported at 844N.Y.S.2d 115 (A.D. 2 Dept 2007) and holds that a properly drawn, executed and acknowledged  waiver of a surviving spouse’s right to an elective share of the estate of the deceased spouse will be seen as valid and enforceable.

In this action, Maria Seviroli, the surviving spouse of Joseph Seviroli , had attempted to invalidate the waiver of her right of election contained within a prenuptial agreement made in October 2000 with her late husband upon the grounds that the agreement had not been duly acknowledged. In a proceeding under SCPA 1421 to determine the validity of a right of election which Ms. Seviroli had asserted, the court granted the petitioner’s motion to invalidate the right of election and to deny Ms. Seviroli’s cross motion to dismiss the petition on the grounds that the prenuptial agreement was void for want of due acknowledgment.

The Estates Powers and Trust Law  5-1.1A(e)(2) requires a waiver of the spousal right of election to be "in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of the state for the recording of a conveyance of real property." The court opined that " A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution, which presumption , in a case such as this, can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed".

While the case does not report on Ms. Seviroli’s reasons for claiming that her agreement was not properly acknowledged, your law blogger suspects that she was trying to take advantage of a change in New York law which occurred in 2003 when a new form of acknowledgment was mandated. Had the notary signed the acknowledgment in 2005 which had  been signed in 2000, this would not have been in compliance with the law and it is possible that Ms. Seviroli’s  claim might have been upheld. At least I suspect that is the theory which motivated her to attempt to invalidate her prenuptial agreement. The court however, found that the acknowledgment to the agreement which was executed in October 2000 was in compliance with the law at that time. In any event, this case provides us with a brief primer on some of the requirements –and pitfalls– involved in waiving a right of election.