The New York Law Journal has reported a decision in which the Appellate Division’s First Department has upheld a decision of New York County Surrogate Kristen Booth Glen recognizing the right of a same sex spouse to inherit. The case is In Re Estate Of Kenneth Ranftie decided on February 24th.

The decedent and the respondent were married in Canada. After making specific bequests to the decedent’s three brothers and a goddaughter, the will named the respondent as the residuary legatee and also appointed him as the Executor. After mailing notices of probate to the four legatees, the respondent filed his probate petition and the will was duly admitted to probate. One of the decedent’s brother’s appealed , claiming that the marriage was void as against public policy and that the court therefore did not have jurisdiction to grant letters testamentary where citations had not been served on the brothers of the decedent who –if he had been unmarried– would have been his distributees.

The court, however, found that the marriage was entitled to recognition inasmuch as it was legal in Canada where it had been performed. Under the principals of comity, American courts must recognize marriages which are valid in the foreign countries where they are performed. Since the marriage was seen to be valid, there was no requirement that the brothers be served with citations. It was sufficient merely to serve them with notices of probate which put them on notice that they were legatees under the will. Because the decedent was recognized to have been married at the time of his death, the only distributee here was his same sex spouse. No one else would therefore need to be cited for the case to proceed and for letters testamentary to issue.

In issuing its decision, the court further opined that the failure of the state legislature to authorize same sex couples to marry in New York, or to specifically recognize the validity of otherwise valid out of state marriages did not constitute an expression of public policy. In short, the legislature’s silence could not be interpreted as a statement of legislative opinion or intent.