The New York Law Journal has recently reported a significant, but bizarre decision concerning the spousal right of election. Brooklyn Surrogate Diana A. Johnson has awarded  47 year old Hua "Judy" Wang one third of the five million dollar estate of her 100 year old husband after a short deathbed marriage. The ruling in the Matter of Berk, 2488/06 has raised more than a few eyebrows –as well as many questions about the law and how it should be applied.

Surrogate Johnson saw no way to deny the grieving widow’s application in the light of the fact that the Estate’s Powers and Trusts Law makes no exception to the right of election as long as the marriage was valid from the time entered into by the parties until the date it ends in death. She opined that even if the marriage is eventually annulled, Ms. Wang was entitled to her statutory share of her husband’s estate . "[W]hether Irving Berk lacked capacity or his consent  was procured by force, fraud or duress, it does not disqualify petitioner from taking her elective share. While this may appear incongruous and seemingly invite a plethora of surreptitious ‘deathbed marriages’ as a means of obtaining one-third of a decedent’s estate immune from challenge, this is simply the state of the law. It is not for this Court to write disqualifications into the law…."

It should be distinguished that the marriage here was voidable and not void. Until such time as it is established that the marriage should not have been made, it would normally remain undisturbed and in full force and effect. Therefore, even if a legal action had been underway to set the marriage aside, an intervening death would leave the survivor legally entitled to enforce his or her right to a spousal election against the estate. Some marriages are void when made –a bigamous marriage or an incestuous marriage never confers spousal rights on either party such as might allow this result. Suffice to say, however, that there is something amiss with laws which permit a caregiver to secretly marry a centagenarian more than fifty years her senior and walk away with one third of a five million dollar estate a few short weeks later ! Clearly the legislature needs to take note.