Nassau County Surrogate John Riordan has found that an objectant in the Matter of the Estate of Willie Stewart,340211 successfully established that she and her son were distributees of the decedent, notwithstanding the fact that his death certificate provided otherwise. While there is a strong presumption as to the information contained in a death certificate, the court was clear to point out that while the document is proof of the cause of death stated therein, collateral facts which it contains may be subject to rebuttal.

The court had held a hearing to determine if the objectant, Doreen Stewart was the surviving spouse of the decedent. She had been married to him in 1988, ten years following his divorce from his first wife. Although the decedent subsequently remarried and once more divorced his first wife, Doreen was able to establish that she had never been divorced. thereby also proving that the remarriage to the first wife was invalid and that she was the surviving spouse. The court further found that the decedent’s sons were unable to establish that their father’s marriage to Doreen had ever been dissolved (she had been able to show that no divorce or annulment of her marriage had taken place in the decedent’s home state of Georgia –or in New York where his property is located). Therefore, in this very unusual state of facts, it was possible to rebut the presumption raised by the inclusion of collateral information in the death certificate — which could therefore not be used to exclude Doreen as surviving spouse.

This is an extremely egregious example of what may happen when our clients fail to properly obtain divorces.Lawyers engaged in matrimonial practice must constantly be aware of these possibilities. It is important to realize that the failure to properly complete the divorce or annulment procedure leads to serious problems many years later. The failure of a subsequent remarriage usually comes home to roost after a generation when the intended surviving spouse is elderly, with reduced assets and suffering from emotional anguish at the loss of a beloved companion. While most folks do not intentionally skip the minor detail of legally ending one marriage before beginning the next, the temptation to fly off to obtain a foreign divorce, or to run off to a state with a short residency requirement can often prove to be a ticking time bomb which does not go off until a hapless would-be surviving spouse sees his or her marriage successfully attacked after suffering the death of a mate.