In Matter of Powell, an August 6, 2021 opinion, the New York Surrogate’s Court addressed whether the deadline for a surviving spouse to file an election for elective share in New York could be extended considering the executive orders issued by the governor in the face of the Covid-19 pandemic.
The Facts of Matter of Powell
Decedent died intestate on January 27, 2019, survived by her husband, John Jiuditta, and her son from a prior marriage, Richard McElwain. Letters of administration were issued to Jiuditta on June 5, 2019.
Jiuditta filed a petition on November 3, 2020 for an order (a) “relieving [him] from default in filing the required time[ly] Notice of Election to take a share of decedent’s estate”, and (b) fixing “the period within which such election shall be made.” Decedent’s son and sister, Melinda Wirtz, objected to the relief.
Jiuditta (the surviving spouse) asserted that, over the course of administering his wife’s estate, he has determined that estate assets total $254,850, with debts and administration costs totaling $250,780.37. In addition, decedent had a $25,000 life insurance policy through her employer naming Jiuditta as beneficiary, and also had one or more California credit union accounts in excess of $200,000 of which Wirtz is the beneficiary.
As Jiuditta puts it, after finally learning that the various (and substantial) testamentary substitutes were left to decedent’s sister, and the value of them, something which was “unanticipated”, “the course of the estate” “has [been] dramatically altered”, which was what led him to file the petition to relieve him from default for not filing the surviving spouse election in the time provided by New York law. Wirtz, however, asserts that Jiuditta knew soon after decedent’s death from the California credit union that he was not a beneficiary of the accounts. She also contends that any ruling in Jiuditta’s favor now could have a negative effect on herself and McElwain by “reducing the interests of decedent’s intended beneficiaries.”
New York EPTL 5-1.1-A – Right Of Election By Surviving Spouse
The elective share is one of the rights of a surviving spouse in New York.
EPTL 5-1.1-A(d)(1) provides that a surviving spouse may make an election to take a share of his wife’s estate provided that such election is made “within six months from the date of letters of administration but in no event later than two years after the date of death of decedent except as provided in subparagraph 2 of this paragraph”.
EPTL 5-1.1-A(d)(2) authorizes the Court, upon a showing of good cause, “to relieve” a surviving spouse of his default under EPTL 5-1.1-A(d)(1) “provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of letters and two years have not elapsed since the date of decedent’s death” (emphasis added). We have written about extending the deadline to file for elective share in New York here.
Here, the estate has not yet been finally settled, so the dispute among the parties revolves around the other statutory requirements.
When Does Good Cause Exist To Relieve a Surviving Spouse Of Missing The Deadline To File an Election Under New York Law?
The Court has discretion to determine whether the requirement of reasonable cause exists to excuse the surviving spouse from the deadline to file for the right of election. New York courts have readily found reasonable cause in situations in which uncertainty exists as to the extent and value of the decedent’s assets.
The Court found reasonable cause for the surviving spouse’s delay in exercising his right of election, stating:
Here, I find that, although Jiuditta knew soon after decedent’s death that there were assets of decedent’s in a California credit union, and that he was not a beneficiary of those assets, he did not know the amount of such assets. Additionally, Jiuditta did not know the complete scope and value of the estate assets and liabilities, something that did not come into sharp focus until the middle or latter part of 2020.
Thus, I conclude that there is a reasonable excuse for Jiuditta’s delay in acting with respect to his statutory right of election.
Timely Filing Of a Petition To Extend The Deadline To File For Elective Share
The Court next turned to the question of timing. EPTL 5-1.1-A(d)(2) authorizes the Court, upon a showing of good cause, “to relieve” a surviving spouse of his default under EPTL 5-1.1-A(d)(1) “provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of letters and two years have not elapsed since the date of decedent’s death”
Decedent died on January 27, 2019, and letters were issued to Jiuditta on June 5, 2019. Although the two year date-of-death time limit was not exceeded here, Wirtz (decedent’s sister) contends that the one year date-of-issuance-of-letters limit was, having expired on June 5, 2020. Jiuditta relied on the unusual circumstances of the moment, arguing:
“During the course of the 12-month limitation period the world, and in particular the State of New York, was confronted with the COVID-19 pandemic. Governor Andrew Cuomo issued Executive Order 202.8, tolling all statute of limitations. In particular, ‘[A]ny specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as prescribed by procedural laws of the state is hereby tolled from the date of this executive order.’ Cherney v Treybich, 2021 NY Slip OP 30607(U) (Sup Ct, Richmond County, 2021).
New York Executive Order 202.8
New York Executive Order 202.8 addressed the continuing temporary suspension and modification of laws relating to the disaster emergency, stating:
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following:
In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.
Governor Cuomo later extended the deadline in a series of subsequent executive orders. Ultimately, the governor set a deadline of the tolling for November 3, 2020.
Tolling Of the Deadline To File Surviving Spouse Election
The New York surrogate’s court relied on the executive order and a prior case addressing the tolling order. In Brash v. Richards, the Appellate Division, Second Department, expressly held that the Governor’s executive orders constituted “a toll of filing deadlines” (emphasis added). The Brash Court went on to explain the following:
“A toll suspends the running of the applicable period of limitation for a finite time period, and ‘[t]he period of the toll is excluded from the calculation of the [relevant time period]‘ (Chavez v Occidental Chem. Corp., 35 NY3d 492, 505, 132 N.Y.S.3d 224, 158 N.E.3d 93 n 8; see Foy v State of New York, 71 Misc 3d 605 [Ct Cl]). ‘Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension’ (Foy v State of New York, 71 Misc 3d at 608).
Here, the Court held that the petition was timely. Although the one year date-of-issuance-of-letters time period would have expired on June 5, 2020, the period from March 20, 2020 to November 3, 2020 is excluded from that one year period under the Governor’s tolling orders. Thus, the 77 days from March 21, 2020 through June 5, 2020, inclusive, is added to the time on and after November 4, 2020 (when the tolling orders expired), meaning that Jiuditta had to file the present application on or before January 19, 2021, in order that it be timely. Jiuditta filed his petition on November 3, 2020.
The Court granted Jiuditta’s petition. New York probate attorneys are used to complying with the various deadlines and timelines that impact the rights of the surviving spouse and other heirs. The Covid-19 pandemic and resulting executive orders possibly extended some of these deadlines, as shown by this case.