Probate, trust, guardianship and inheritance litigation
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Can You Revoke A Renunciation Of An Intestate Share Of A New York Estate?

No, you cannot revoke a renunciation that has been filed in a New York probate estate under New York EPTL 2-1.11.

In Matter of Zelouf, the Supreme Court of the State of New York Appellate Division, Second Judicial Department, upheld the surrogate’s dismissal of an action to revoke a renunciation of an intestate share of a decedent’s estate.

The Facts of Matter of Zelouf

Petitioner’s paternal grandfather died intestate in 2003.  Petitioner was a minor when decedent died.  The decedent was survived by his surviving spouse, children, grandchildren (including petitioner) and a great grandchild.

Decedent’s children, grandchildren, and great grandchild renounced their interests in certain property included in Decedent’s estate.  Since petitioner was a minor at the time, petitioner’s father, as guardian of petitioner’s property, renounced petitioner’s entire intestate share on the petitioner’s behalf pursuant to EPTL 2-1.11.

Over a decade later, in 2015, the petitioner commenced a proceeding to revoke his renunciation, and to obtain damages for breach of contract and unjust enrichment.  Decedent’s wife and some of decedent’s children and grandchildren moved to dismiss the petition.

The New York Surrogate’s Court granted the motion to dismiss.

Renunciation Of Interest In New York Estate

EPTL 2-1.11 addresses renunciation of property interests and provides that “[a]ny beneficiary of a disposition may renounce all or part of such beneficiary’s interest…” EPTL 2-1.11(c)(1).

A renunciation may be made by:

(1) The guardian of the property of an infant, when so authorized by the court having jurisdiction of the estate of the infant….

Unless the creator of the disposition has otherwise provided, the filing of a renunciation, as provided in this section, has the same effect with respect to the renounced interest as though the renouncing person had predeceased the creator or the decedent…

EPTL 2-1.11(d)(1) and (e).

“A renunciation filed under [EPTL 2-1.11] is irrevocable” (EPTL 2-1.11[h].)

What Are The Requirements For A Renunciation Under New York Law?

For a valid renunciation under New York law, the renunciation must be:

  • In writing
  • Signed and acknowledged by the person renouncing
  • Filed in the office of the clerk of the court having jurisdiction over the will or trust agreement governing the property of which the disposition would otherwise be made or the court which issued letters of administration, or if there is no probate or administration, then in a surrogate’s court provided by law as the place of probate or administration of the decedent’s estate
  • Filed within 9 months after the effective date of the disposition
  • Accompanied by an affidavit of the renouncing party that such party has not received and is not to receive any consideration in money or money’s worth for such renunciation from a person or persons whose interest is to be accelerated, unless payment of such consideration has been authorized by the court.

In another case addressing the attempted revocation of a renunciation of an interest in a New York estate, In re Estate of Munch, 480 N.Y.S.2d 95 (1984), the Court highlighted the detailed requirements for a renunciation, stating:

It is well settled that a person may renounce a share in an estate (see, generally, 9 Rohan, NY Civ Prac, EPTL, par 2-1.11 [2] [discussion of former EPTL 4-1.3 — renunciation of intestate shares]). The present statute, EPTL 2-1.11 (subd [b], par [2]), outlines procedures for renouncing an intestate share. The statute contains specific and detailed  requirements to ensure that a renunciation is made with proper care and consideration. For example, the renunciation must be in writing, signed and acknowledged; it must be filed with the court clerk within nine months of disposition; the renouncing party must provide an affidavit stating that no consideration was received for the renunciation; and the administrator of the estate must be notified of the renunciation …

The appellate division agreed with the Surrogate’s determination granting the motion to  dismiss the causes of action seeking to revoke petitioner’s renunciation filed in his grandfather’s New York estate.

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