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Ministerial Act Exception Used To Deny Surviving Spouse Status In New York County Surrogate’s Court

In Matter of Rosa, a July 21, 2022 opinion from New York County Surrogate’s Court, the court relied on the well-established ministerial act exception to determine the rights of the parties as if a divorce judgment had been entered before the death of one of them, thereby denying surviving spouse status.

The Facts of In Matter of Rosa

Keara Rosa died in a traffic accident.  Her mother, Alma Rosa (“Rosa”), claiming to be her sole distributee, petitioned for limited letters of administration in order to bring a personal injury/wrongful death suit.  Akiem Baker (“Baker”) cross petitioned for limited letters of administration, claiming priority as decedent’s surviving spouse.  Rosa sought dismissal of Baker’s cross-petition on the ground that the marriage between decedent and Baker was effectively ended before decedent’s death and he was not a surviving spouse.

The following facts were not in dispute:

Baker, a citizen of Jamaica, came to the United States in October 2017 on a visitor’s visa.  Decedent and Baker met in January 2018 and married a month later.  No friends or family attended the wedding.  The couple lived together until late 2019, when decedent left the marital home after an argument over whether Baker would give her $250 to have her hair done.

On October 21, 2019, Baker’s attorney initiated an action for an uncontested “no=fault” divorce.  Baker swore under oath and in the accompanying affidavit that: 1) the marital relationship had been irretrievably broken for at least six months, 2) that there were no children of the marriage, and 3) that there were no unresolved economic issues between the parties.  Decedent was served with the complaint but did not enter an appearance or file any opposition.

The case was scheduled to appear on the special referee’s docket on July 28, 2020.  The matter was not heard on that day because, due to COVID, an administrative stay was in effect which prohibited the entry of default judgments.  Decedent died about a week later, on August 5, 2020.

The special referee affirmed that because of the administrative stay, he did not have the opportunity to review the case file at that time.  When he did later, he found the papers to be “in order in all respects,” and “legally sufficient.”  He further averred that there “would have been no impediment to me signing the proposed Findings of Fact/Conclusions of Law and Judgment of Divorce and I would have signed it.”

Baker argued that the affirmation of the special referee did not definitively establish that he would have granted Baker a divorce on the papers submitted.

Does a Divorce Action Usually Abate On the Death Of One of the Parties?

Yes.  Divorce actions, which are considered personal in nature, generally abate on the death of one of the parties (see e.g. Acito v Acito, 72 AD3d 493 [1st Dept 2010]).  Therefore, if parties were in the midst of a divorce and one of them dies, the other is generally considered the surviving spouse under New York law, because the divorce was not final.

What Is the Ministerial Act Exception Under New York Law?

The ministerial act exception is a well-established exception to abatement of a divorce action, and applies when all issues in the divorce action have been resolved and all that remains is for the court to complete the “ministerial act” of signing and entering the divorce judgment (id. at 493, quoting Cornell v Cornell, 7 NY2 164, 170 [1959]). Where the ministerial act exception applies, the rights of the parties are determined as if a divorce judgment had been entered before the death of one of them (see Lewis v Green, 295 AD2d 250 [1st Dept 2002]; Zuckerman v Zuckerman, 34 AD 3d 403 [l5t Dept 2006]).

Here, Baker argued that the ministerial act exception did not apply because, in addition to not signing and entering a divorce judgment, the Special Referee did not sign the separate Findings of Fact/Conclusions of Law before decedent’s death, and therefore he was still the surviving spouse under New York law.

The New York Surrogate’s Court rejected this argument, stating:

He implies that the signing of this document required some exercise of judicial discretion which constituted more than a mere ministerial act. However, he cites no authority for this proposition in an uncontested divorce action being granted on default. In fact, the ministerial act exception has been applied repeatedly in cases where all issues between the parties had been resolved by stipulation, but the findings of fact/conclusions of law as well as the divorce judgment had not been signed (see e.g. Zuckerman v Zuckerman, 34 AD 3d 403 [1 st Dept 2006] [where parties had settled all substantive issues but plaintiff died prior to the entry of findings of fact and settlement of the judgment of divorce, the judgment was properly entered nunc pro tunc]; McKibben v Jenkin, 41 AD3 795 [2d Dept 2 0 0 7 ] [ same ] ) . Numerous Surrogate’s Court cases support this conclusion. For example, in Matter of Mirizzi, 187 Misc 2d 481 (Sur Ct, Richmond County 2001, affd on other grds, 737 NYS2 542 [2d Dept 2002]), the spouses had stipulated in open court to the terms of their divorce settlement, and all papers needed to effectuate an uncontested divorce were filed with the court before the husband’s death. However, as here, the requisite findings of fact and conclusions of law had not been signed before the husband’s death. The court invalidated a bequest to the wife in decedent’s will on the ground that the parties were divorced, noting that “[t]he failure of the Court in not signing the unopposed judgment of divorce in a timely fashion can be attributed only to the failure of the system as established in the matrimonial part of the Supreme Court … ” Other cases are in accord (see e.g. Matter of Jon David E., 48 Misc 3d 1223(A), 26 NYS3d 213 [Sur Ct, Dutchess County 2015]; Matter of Savino, NYLJ, January 25, 2010 at 30, col 3 [Sur Ct, Suffolk County]).

Can the Ministerial Act Exception Deny Surviving Spouse Status Under New York Law?

Yes. The New York Surrogate’s Court determined that the ministerial act exception applied in this case, and therefore Baker did not have status as surviving spouse to claim priority to administer decedent’s estate:

The ministerial act exception applies to this case. Baker filed the paperwork necessary to secure a judgment of divorce on default. There were no issues requiring determination or matters that required further court attention or the exercise of the court’s discretion. Only an administrative stay on the signing of default judgments caused by the COVID pandemic prevented a timely final resolution of the matter before decedent’s death. The judicial officer to whom the matter was assigned has stated that there was nothing left to be done other than his signing of the Findings of Fact/Conclusions of Law and the Judgment of Divorce, and that, had he not been constrained by the administrative stay, he would have signed them. Accordingly, as a matter of law, the divorce action did not abate. Based on the foregoing, the motion for summary judgement is granted and the cross-petition is dismissed. A decree has been signed granting Alma Rosa’s petition for Limited Letters of Administration upon her duly qualifying according to law.

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