Our courts have seen an increase in lawsuits involving elder exploitation over approximately the last 15 years. This is due in part to the fact that the population is living longer and the elderly are increasingly relying upon caretakers. There are myriad ways in which unscrupulous individuals take advantage of older persons, but not all of them were anticipated by the Legislature. We are well familiar with the problem, having spent more than a decade litigating Matter of Berk—a case concerning a predatory marriage.

'Berk'

In Berk, the decedent purportedly entered into a marriage with his live-in caretaker one year before his death. At the time, the decedent was 99 years old, wheelchair bound, hard of hearing and had recently been diagnosed with dementia. The caretaker first revealed the marriage to the decedent's sons, the executors of his estate, in a car on the way to the funeral home. She later served them with a notice of the exercise of her right to an elective share of the decedent's estate and, when the co-executors rejected it, commenced a proceeding to determine her inheritance rights.

And so protracted litigation began. The Surrogate's Court initially granted summary judgment to the caretaker, reasoning that EPTL 5-1.2 sets forth the exclusive grounds upon which a surviving spouse can be disqualified from receiving an elective share. Matter of Berk, 864 N.Y.S.2d 710 (Sur. Ct. Kings Cty. 2008). The statute does not provide for disqualification if the marriage was procured through the exercise of undue influence or if one party to the marriage was mentally incapacitated at the time of the ceremony. The statute does however permit spousal disqualification in the event a marriage is annulled on either of those grounds, that is only so if a decree of annulment was in effect prior to the decedent's death. In Berk, it was impossible for the decedent's sons to obtain a pre-mortem annulment because they did not know about the marriage until after their father died since it had been purposefully concealed from them by the caretaker.

The Appeals

In two subsequent interlocutory appeals, the Appellate Division reversed and held that the decedent's caretaker would be deemed to have forfeited her elective share as a matter of equity if she procured the inheritance right through wrongdoing, whether by taking advantage of decedent's incapacity, or by her undue influence or both, and placed the burden of proving such wrongdoing upon the executors by a preponderance of the evidence. Matter of Berk, 71 A.D.3d 883 (2d Dept. 2010); Matter of Berk, 133 A.D.3d 850 (2d Dept. 2015). Applying these standards on remand, the Surrogate's Court found, after a 37-day trial, that the decedent's caretaker was guilty of “consistent, insidious and duplicitous conduct” and therefore was barred from inheriting. Matter of Berk, 60 Misc.3d 1207(A) at *5 (Surr. Ct. Kings Cty. June 27, 2018).

No Easy Fix

In an article recently published in the New York Law Journal entitled “Predatory Marriages and the Elderly: A Legislative Solution,” the author discussed Berk and Campbell v. Thomas, 73 A.D.3d 103 (2d Dept. 2010), another case with similar facts that was decided by the Appellate Division on the same day it decided the first Berk appeal in 2010. The author opined that a simple revision to existing legislation would remedy the problem of predatory marriages. This “quick fix”—which is embodied in legislation being considered by both the Assembly and the Senate—involves merely changing EPTL 5-1.2 so that it provides for spousal disqualification in the event an annulment is granted post mortem.

We submit, however, that the right solution is not so simple and, in fact, such proposed legislation does not codify the existing equitable principles laid down by the Appellate Division in Berk and Campbell.

The first important distinction between the proposed legislation and the Berk and Campbell standards concerns the burden of proof. In annulment proceedings under the Domestic Relations Law (DRL), “there is a presumption not only of sanity, but in favor of the validity of a marriage celebrated in due form…unless it is overcome by proof, clear and satisfactory, which stands the test of the most careful scrutiny.” Weinberg v. Weinberg, 255 A.D. 366, 369 (4th Dep't 1938).

In other words, the challenger of the marriage must prove grounds for annulment by the heightened standard of clear and convincing evidence. In contrast, under Berk and Campbell, the party arguing for forfeiture of the elective share bears the burden of proving wrongdoing by only a preponderance of the evidence.

The DRL was designed, by and large, with a view toward marriage annulments among living persons who are both parties to the proceeding. In such cases, the alleged incapacitated person (DRL §140(c)), or the person whose consent was procured by fraud or duress (DRL §140(e)), is a form of living proof. His or her testimony and condition can be assessed by the court, and he or she can be subjected to medical and psychiatric examinations in real time. Such evidence is not available, where, as in Berk, the marriage is kept hidden until after death. As a result, the heightened burden of proof associated with annulment proceedings is harder to satisfy in the post mortem context.

That difficulty is exacerbated by CPLR 4519—commonly referred to as the “Dead Man's Statute.” It prevents an interested party from testifying against the executors of a decedent's estate or his survivors (e.g., a surviving spouse) about transactions or communications with the decedent. Thus, while executors and beneficiaries of an estate might be the best witnesses to a decedent's competency or susceptibility to undue influence, they, too, might be unable to testify.

Rather than relying on the DRL's framework, Berk and Campbell rightly relied on a vast body of law addressing when predatory transactions should be vitiated as a result of incapacity or undue influences. These cases give due consideration to the fact that the subject of the proceeding is deceased and unable to participate in the proceedings. Indeed, the quantum of proof on the issues of capacity and undue influence in almost all other cases is by the lesser preponderance of the evidence standard. See, e.g., Matter of Henig, 11 A.D.3d 614, 615 (2d Dep't 2004); Emrich v. Emrich, 173 A.D.2d 818, 820 (2d Dept. 1991); Matter of Buckten, 178 A.D.2d 981 (4th Dept. 1991).

Additionally, in cases involving almost all other types of predatory transactions, there are circumstances in which the burden of proof may shift away from the challenger. Where the wrongdoer is in a confidential relationship with, and wields power over the victim, “the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood.” Gordon v. Bialystoker Center & Bikur Cholim, 45 N.Y.2d 692, 699 (1978). Similarly, as famously articulated in Matter of Putnam, 257 N.Y. 140 (1931), where there is a confidential relationship, the trier of fact in a will contest may infer that there was undue influence even without direct proof thereof, placing the onus on the influencer to rebut the inference.

Given the decedent's unavailability and the evidentiary hurdles presented by CPLR 4519, challenges to inheritance rights resulting from predatory marriages should be governed by the same standards that apply in other cases concerning property or inheritance rights resulting from wrongful conduct. In that regard, the Appellate Division took pains in Campbell and Berk to be clear that it did not simply view these cases as post-mortem annulments. Rather, the court made plain that trial courts need only decide whether permitting an unworthy spouse to take an elective share would make the judicial system “an instrument of the wrong.” Berk, 71 A.D.3d at 885-86; Campbell, 73 A.D.3d at 106 (holding that surviving spouse would not be permitted “to profit by [her] own fraud, or to take advantage of [her] own wrong, or to found any claim upon [her] own iniquity, or to acquire property by [her] own crime.”).

Conclusion

With the foregoing in mind, the Appellate Division called upon the Legislature “to reexamine the relevant provisions of the EPTL…and to consider whether it might be appropriate to make revisions that would prevent unscrupulous individuals from wielding the law as a tool to exploit the elderly and infirm and unjustly enrich themselves at the expense of such victims and their rightful heirs.” Campbell, 73 A.D.3d at 121. We commend all those that have worked diligently to answer that call by drafting legislation on this complicated issue.

However, we fear the proposed legislation has veered away from the equitable foundations of Berk and Campbell, and has unnecessarily treated predatory marriages differently from other forms of exploitation. Though unintended, this may lead wrongdoers to choose surreptitious marriages as their preferred weapon of exploitation—comforted by the fact that it will be harder for victims' families to defeat the resulting inheritance rights than to vitiate wrongfully procured inter vivos transfers or testamentary instruments.

John Farinacci is a partner at Ruskin Moscou Faltischek in Uniondale. Jessica M. Baquet is a partner at Jaspan Schlesinger in Garden City.