Petitioner moves for summary judgment in this proceeding which seeks leave to extend the time to serve and file a late notice of spousal election against decedent’s estate pursuant to EPTL 5-1. 1-A (d)(2). Decedent died testate on October 27, 2020 survived by her spouse, Suk, and their two children, Paula and Benedict. Decedent’s estate consists of personal property and rental income of approximately $190,000.00 and two parcels of improved real property in Flushing and Little Neck with a total value of $2,400,000.00. Pursuant to decedent’s last will and testament dated April 17, 2007, the Little Neck property is specifically bequeathed to Benedict, while the Flushing property is specifically bequeathed to Paula subject to a life estate for Suk. The residuary is divided equally among Suk, Benedict and Paula. Letters testamentary issued to Benedict on June 30, 2021. Under EPTL 5-1.1-A (d)(1), a right of election must be made within six months from the date letters testamentary issued but no later than two years from decedent’s date of death. The statute also provides that the period may be extended for a further six-month period if a decree settling the account hasn’t issued, twelve months have not elapsed since the issuance of letters and two years have not elapsed since decedent’s death. In this case, a written notice of election was not served prior to the six-month deadline on December 30, 2021. A petition to extend the spouse’s time to elect was originally filed on February 16, 2022, eight months after the issuance of letters and less than two years from decedent’s death. Specifically, it appears that petitioner retained a law-firm to prosecute this proceeding and it was filed through the NYSCEF system in February. On March 4, 2022, petitioner’s attorney was notified that the documents were removed from NYSCEF, and that they needed to be refiled utilizing a different ID number. The petition was refiled on March 8, 2022. Counsel was instructed by the court on May 11, 2022, to make additional changes to the petition, and the amended petition was filed the next day. Considering that the last submission was made less than twelve months from the issuance of letters, less than two years from decedent’s death, and a decree in a judicial accounting has not yet issued, there is no dispute regarding whether the application is timely (EPTL 5-1.1-A [d][2]). Next, the court must consider if petitioner has a reasonable cause for the delay. In this regard, the delay in filing the original petition is minimal and no prejudice has resulted from the delay. Petitioner asserts that some delay can be attributed to his lack of awareness of the right of election due to limited funds and difficulty with the English language. While countervailing proof makes this basis tenuous, it is abundantly clear that petitioner and the fiduciary were having minimal communication with each other, and physical altercations between them have been alleged to the point where a Criminal Court case was instituted in Queens County. Additionally, a portion of the delay can be ascribed to law office failure and the court’s own inability to more timely process the application. On these facts, the court finds that petitioner has arguably demonstrated reasonable cause for the delay that warrants an extension of time to file a notice of spousal election (see generally Matter of Sylvester, 107 AD3d 903, 904 [2d Dept 2013]; Estate of Armstrong, NYLJ, March 12, 2019 at 22, col 4 [Sur Ct, Bronx County]; Estate of Watson, NYLJ, March 18, 1997 at 5, col 2 [Sur Ct, Westchester County]). In opposition to petitioner’s prima facie showing of entitlement to summary judgment, respondent contends that decedent left petitioner with sufficient life insurance and testamentary assets, that he was aware of his right of election and that his execution of a waiver in the probate proceeding should preclude him from the requested relief. Respondent’s argument with respect to the filing of a waiver in the probate proceeding is without merit, as it has no impact on a party’s separate right to file a spousal right of election. The precise manner to waive a right of election is set forth in EPTL 5-1.1-A (e) and the provisions of the statute must be strictly adhered to for there to be an enforceable waiver (see e.g. Matter of Seviroli, 44 AD3d 962 [2d Dept 2007]; Estate of Henry Bono, 1998 NYLJ LEXIS 2079 [Sur Ct, Nassau County]). The mere filing of a standard waiver and consent to probate by a surviving spouse, absent more, cannot constitute a waiver of the right of election. Likewise, the court finds that respondent’s contention that petitioner was aware of the right of election and that he has received, or will receive, sufficient assets, are not valid reasons to deny petitioner’s request as the effect and validity of petitioner’s elective share is properly determined in a proceeding to judicially settle the executor’s account or in a separate proceeding to determine that issue. Accordingly, the motion is granted, the answer is dismissed, and the petition is granted to the extent that petitioner is granted leave to serve and file a spousal right of election within 90 days after the date of the decree to be entered herein (EPTL 5-1.1-A [d][2]). Settle Decree. Dated: February 28, 2023
