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Another Department Heard From: NY Appellate Division, 1st Department, Affirms Recognition of Same-Sex Marriage Performed in Canada

Posted on: February 24th, 2011 by Art Leonard No Comments

Adding to the body of appellate precedents recognizing same-sex marriages in New York, the Appellate Division, 1st Department, ruled today in Ranftle v. Leiby, No. 4214 (Index 4585/08), that a same-sex marriage performed in Canada in 2008 would be recognized in New York for purposes of probating the will of one of the spouses. 

The unanimous ruling by a four-judge panel, affirming N.Y. County Surrogate Kristen Booth Glen's refusal to allow the decedent's brother to contest the will, is the first such ruling by the appellate court whose jurisdiction covers Manhattan and the Bronx, and cites as precedent the 4th Department's ruling in Martinez v. County of Monroe, 50 App.Div.3d 189, appeal dismissed, 10 N.Y.3d 856 (2008).  The 3rd Department has also ruled in favor of same-sex marriage recognition, in Lewis v. N.Y.S. Department of Civil Service (2009), and the 2nd Department has cited Martinez twice, although it has not yet issued a direct ruling on the question.

According to the court's memorandum opinion, the decedent Ranftle executed his last will and testament on August 12, 2008, two months after marrying Leiby in Canada.  Decedent appointed Leiby as the executor of his will, which includes an in terrorem clause.  Ranftle died soon thereafter, and Leiby filed a petition for probate on December 12, 2008, identifying himself as surviving spouse and sole distributee.  (When a married person dies, his or her surviving spouse and any offspring are the only distributees under New York law.  A distributee is somebody who would be entitled to inherit by operation of law in the absence of a valid will.)  Under the will, Ranftle left bequests to his three brothers and a goddaughter, and named Leiby to receive the rest of his estate. On the same date, Leiby served notice of probate on  the legatees (those who were to receive bequests).  Three days later, Surrogate Glen issued a decree granting probate.

On January 26, 2009, Surrogate Glen followed up her decree with a written opinion formally finding that Leiby was "decedent's surviving spouse and sole distributee" and so it was not necessary for the court to issue "citation of the probate proceeding" to anybody else.  Had Ranftle died without leaving a surviving spouse, citation of the probate proceeding (i.e., notice to the distributees that a will has been filed for probate) would have to be issued to those who would be entitled to inherit as a matter of law in the absence of a valid will, so they would have an opportunity to apepar in the proceeding to contest the will.  Such an opportunity is denied to legatees or others under New York law when a married person dies, as the spouse and any surviving offspring would be the only recognized distributees. 

Wrote the Appellate Division: "The [Surrogate's] court found that the decedent's same-sex marriage to respondent was valid under the laws of Canada, where it was performed, and did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law.  Accordingly, the Surrogate's Court found that the marriage was entitled to recognition."

But one of Ranftle's brothers, Richard, claimed that the marriage was not valid in New York and petitioned the Surrogate's Court to vacate the probate decree and allow him to file objections.  He claimed that the court lacked jurisdiction to probate the will because recognizing the marriage would violate public policy, and failure to give him appropriate notice of the pending probate proceeding as a distributee meant the court did not have proper jurisdiction to probate the will.  Denying the petition, Surrogate Glen cited the Martinez decision, stating that Richard Ranftle's argument "is patently without merit."  "We agree," wrote the Appellate Division panel, finding that "Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule." 

Ranftle had argued that the legislature's vote against the Marriage Equality bill in December 2009 reflected a public policy against same sex marriage.  The court rejected this contention, stating, "The failure of the Legislature to enact a bill 'affords the most dubious foundation for drawing positive inferences.'  Thus, the Legislature's failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State.  In the absence of an express statutory prohibition legislative action or inaction does not qualify as an exception to the marriage recognition rule."

The Manhattan firm of Weiss, Buell & Bell and Lambda Legal are co-counsel for Leiby and the Ranftle Estate on this appeal.  Lambda's Susan Sommer argued before the Appellate Division.

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