Exploring Abandonment in the Context of a “Marriage of Convenience”
January 17, 2013
Can a surviving spouse be guilty of abandonment, consequently forfeiting the presumptive right to administer her deceased spouse’s estate, if she was effectively in a “marriage of convenience”? In her recent decision in Estate of Shoichiro Hama, 2009-4505 NYLJ 1202579753326, at *1 (Sur Ct, New York County, Decided November 26, 2012) former New York County Surrogate Glen decided in the affirmative. In considering the issue of abandonment, the Surrogate also called for a general re-examination of the concept of a ‘surviving spouse’ as it pertains to intestate succession and other spousal rights under the EPTL.
The problematic facts of the case may have spurred Surrogate Glen’s more general contemplations. It is relatively clear from the court’s decision that the decedent married the spouse primarily for tax reasons and, during the marriage, the spouse lived with another man, publicly holding herself out to be married to this second man, with the decedent’s knowledge and consent.
Shoichiro Hama, the decedent, owned a condominium apartment in Manhattan and sought to sell it. In June 2006, he consulted his accountant who informed the decedent that he would incur significant capital gains taxes on the sale. When the decedent inquired how he could mitigate these taxes, the accountant joked that he could get married. A few weeks following this discussion, on July 7, 2006, the decedent married Yuko Machida, an employee of his company. Two months thereafter, on September 6, 2006, the decedent sold his apartment. In November 2006, the decedent told his accountant that he wished to obtain a divorce and the accountant advised against it. The decedent asked how long the accountant recommended he stay married to preserve his tax benefit, and the accountant advised two years.
In 2007, the decedent moved to Japan and Machida also moved to Japan, but to live with another man, Travis Klose, with whom she had maintained a relationship prior to her marriage to the decedent. Facing parental stigma for living with a man with whom she was not married, Machida registered in Japan as being married to Klose. The decedent was aware of this and, in fact, assisted in Machida’s registration as Klose’s wife by signing and affixing his personal seal to their marriage certificate, as a witness.
In August 2009, the decedent inquired of his accountant whether he could then divorce Machida. As the decedent was contemplating the sale of another apartment in Manhattan, the accountant advised him that he should remain married. The decedent subsequently died intestate on September 4, 2009. Thereafter, Machida petitioned for issuance of letters of administration, via a designee, and the decedent’s parents cross petitioned for the same, via a designee. Temporary Letters of Administration issued to Machida’s designee. The designee of the decedent’s parents filed a motion for, among other things, summary judgment revoking Machida’s designee’s letters, and dismissing Machida’s administration petition, based on a claim of spousal abandonment.
EPTL 5-1.2 (a)(5) provides that a husband or wife is disqualified as a surviving spouse under the EPTL, for purposes of intestate distribution, among other things, if it is established that the husband or wife abandoned the deceased spouse and such abandonment continued until the time of death. Former Surrogate Glen noted that while the EPTL contains no definition of abandonment, it is generally and historically understood that the concept was imported from the Domestic Relations Law, such that if a spouse would have been entitled to a decree of divorce based on the grounds of abandonment, such spouse would be subject to a viable claim of abandonment under the EPTL.
The long-standing Court of Appeals decision in Matter of Maiden (284 NY 429 ), holds that to constitute abandonment, a spouse’s departure from the marital home must be both “unjustified and without the consent of the other spouse” (id. at 432). As Surrogate Glen noted, the decedent’s participation in Machida’s ‘marriage’ to Klose in Japan was “the very opposite of ‘lack of consent’” and the decedent’s parents’ claim of abandonment would fail under this test (Estate of Shoichiro Hama at *7).
Nevertheless, Surrogate Glen based her decision on another case, Matter of Oswald (43 Misc 2d 774 [Sur Ct, Nassau County 1964], affd 24 AD2d 465 [2d Dept 1965], affd 17 NY2d 447 ). In that case, the parties allegedly entered into a common law marriage, but later exchanged mutual releases and each married another. The Surrogate found abandonment, quoting Matter of Bingham (178 Misc 801 [Sur Ct, Kings County 1942], affd 265 AD 463 [2d Dept 1943], rearg denied and lv denied 266 AD 669 [2d Dept 1943]), that “[t]he court knows of no more convincing evidence of abandonment than the public ceremonial remarriage of the petitioner to another woman in the lifetime of the decedent and his cohabitation with such woman as husband and wife” (id. at 805). The Appellate Division affirmed Oswald “on the opinion of the Surrogate” and the Court of Appeals affirmed without decision. Thus, it is not clear whether public remarriage, valid or not, qualifies as abandonment and stands as an exception to the Maiden requirement that abandonment be without consent. Based on the ambiguity created by the Court of Appeals’ affirmation of Oswald, in seeming conflict with its earlier rule in Maiden, Surrogate Glen ultimately held for the decedent’s parents and found abandonment by Machida.
This holding lead Surrogate Glen to question general policy issues regarding surviving spouses. First and foremost, Surrogate Glen noted that New York has done away with the fault-based divorce system from which the concept of abandonment first sprung. She then traced the historical evolution and reappraisals of spousal relationships under New York’s divorce law. One of the primary factors in this evolution, she noted, has been the shift in the understanding of marriage from being a sacred bond for life to being an economic partnership. She called for a similar reappraisal in estate law.
The concept of a surviving spouse, according to the Surrogate, was originally used as a proxy for the person closest to and/or most dependent on the deceased spouse, that is, the natural object of the deceased spouse’s bounty. Thus a surviving spouse has priority to administer an estate, priority of intestate distribution, and the right to elect against an estate. But what of spouses who remain married but live apart for years? What of married partners who develop fulfilling and committed relationships with other persons, without formally divorcing their spouse? Who is the more natural object of bounty in this case? According to Surrogate Glen, the current estate concept of a surviving spouse “no longer reflects reality, at least for a large number of people.” She concluded that “[c]hanging understandings of what constitutes family, demographic shifts, and alterations in economic dependence strongly suggest the need both to reappraise the spousal disqualification statute and the interests it serves: administration, intestacy and spousal election. One may hope that the bar and the legislature will hear and heed this call” (Estate of Shoichiro Hama at *16-*17).
In light of the radically changing societal and legal conceptions of marriage, does the current standard of spousal abandonment, which is itself grounded in a fault-based divorce system that, for the most part, no longer exists, continue to serve the purposes for which it was intended or the premises on which it was based? It remains to be seen whether the legislature will consider or address Surrogate Glen’s thought-provoking questions.