In re the Estate of Visich

204 Misc. 1, 122 N.Y.S.2d 782, 1953 N.Y. Misc. LEXIS 1886

Opinion

Hazleton, S.

Petitioner, the widow of deceased, filed her notice of election, which was rejected by the executor upon the ground that petitioner had abandoned her husband.

In 1943, the widow and her husband entered into a separation agreement, wherein petitioner released her right of election. I find that shortly after the execution of this agreement, there was effected a reconciliation; and further, that at the decease of the husband, both he and petitioner were living together as man and wife.

The executor further contends that since the two children of deceased assigned to their mother a one-third interest in the estate, subsequent to the filing of the notice of election, there is no justiciable issue before the court. With this contention I cannot agree. The right to file a notice of election under section 18 of the Decedent Estate Law is a personal right, as distinguished from a property right. (Matter of Carll, 201 Misc. 829, and cases cited therein.) The widow is not deprived of this purely personal right with all of its benefits and implications by accepting a gift of a one-third interest in her husband’s estate from her children, who received the entire estate under the will.

Submit decree accordingly on notice.