New York County Surrogate Court Judge Kristin Booth Glen ruled on September 14, 2011, that the late H. Kenneth Ranftle was domiciled in New York at the time of his death and rejected a challenge to probate of his will brought by his brother, Ronald Ranftle, who argued that Ken was a Florida domiciliary. Ranftle's domicile at death was important because his marriage to J. Craig Leiby is recognized under New York law, but would not be recognized under Florida law. Thus, the designation of Leiby as sole distributee and as executor of the estate theoretically hinges on a determination of his deceased husband's state of domicile. In the Matter of Ranftle, 2008-4585, NYLJ 1202515287643 (Surr., N.Y., decided September 14, 2011).
The matter is complicated because Ranftle owned a house in Ft. Lauderdale and took steps in 2003 to establish domicile there, primarily for tax purposes. Unlike New York, Florida does not have a personal income tax, and, observed Judge Glen, "there are capital gains and property tax advantages and a significant homestead exemption" available to Florida domiciliaries. Although Ranftle and Leiby spent a large part of the year living together in the apartment they jointly owned on West 13th Street in New York City's Greenwich Village, as well as property on Fire Island and an apartment they bought in Montreal, Ranftle had been careful to maintain his Florida domiciliary status by documenting his presence in the state for at least 183 days in each tax year, as required by Florida law.
However, when he was diagnosed with terminal lung cancer in March 2008, he decided to remain in New York City and actually never spent another day in the Florida house between then and his death on November 1, 2008. That was a memorable year for same-sex marriage in New York. Early in the year, an upstate appeals court ruled that same-sex marriages contracted elsewhere must be recognized in New York, and shortly thereafter Governor David Paterson issued a directive to state agencies about compliance with the court's ruling. Reacting to these events, Ranftle proposed marriage to Leiby, his long-time partner, and they traveled to their Montreal apartment and made the necessary arrangements, marrying there on June 7, and then returning to New York.
Ranftle also arranged to make a new will, now that he was getting married. At this point there was an unfortunate slip-up, as the attorney who prepared the new will cut-and-pasted provisions from his prior will and overlooked the statement in the prior will that Ranftle was domiciled in Florida, so that provision was transferred to the new will intact. Both the lawyer and Ranftle were focused on the provisions that were changed and paid no attention to this provision. Ranftle did not bother to change his driver's license, and actually cast an absentee ballot in the 2008 general election in November before he died. (A bit of irony here, as Election Day was November 5 and Ranftle passed away on November 1.)
After Ranftl died, Leiby presented the will for probate and Surrogate Glen concluded that as Leiby was a surviving spouse, he was the sole distributee at law and there was no need to notify other surviving relatives. Leiby was the executor and main beneficiary under the will. But another one of Ranftle's brothers, Richard, sought to intervene in the case, challenging Leiby's spousal status, and took that challenge to the Appellate Division, which affirmed Surrogate Glen's ruling that the marriage would be recognized in the probate context in New York. See In re Estate of Ranftle, 81 App. Div. 3d 566 (1st Dept. 2011). Ranftle's other brother, Ronald, then brought this new challenge, contending that Leiby was not qualifed under Florida law to be sole distributee and executor, seeking to vacate the probate decree.
After a hearing, Surrogate Glen signed a detailed opinion reviewing all the evidence on September 14, which was published by the New York Law Journal on September 23. Taking into account all the evidence presented on both sides of the question, Glen concluded that Ranftle was a New York domiciliary at his death. "Based on the testimony of the witnesses," she wrote, "especially Craig, Ken's accountant, and Ken's attorney, I find by clear and convincing evidence that some time in 2008, probably at or around the time of his terminal diagnosis, but no later than his marriage, Ken formed the intent to abandon his Florida domicile and to re-establish his domicile in New York where his friends, family and beloved spouse were located. He did so for two reasons: to be with those he loved, in the city where he had lived and prospered, in the commodious apartment he and his husband owned together, and had lived in since 1999; and because New York, unlike Florida, had expressed its willingness to recognize and respect his relationship with — and marriage to — Craig. It is significant that, following his diagnosis, Ken never returned to Florida, even while taking steps to protect Craig's interest in the only property he owned there."
Glen found that the reference in the last will executed by Ranftle to being a Florida domiciliary was something courts refer to as a "scrivener's error," not representative of Ranftle's actual intent, and actually overlooked by Ken. Further, she characterized his voting by Florida absentee ballot as "an anomaly insufficient to overcome the otherwise compelling evidence that Ken chose to become, became, and died a domiciliary of New York."
"In considering the 'association and interests'" that courts are supposed to consider in determining issues of domicile, wrote the judge, "there is one additional compelling fact. Ken was a proud gay man who treasured — and sought in every way available to protect — his husband Craig, and Craig's rights upon his death. He named Craig executor in his will, and it was obviously his intent that Craig should not only be the primary beneficiary of his estate, but also that he be permitted 'to serve as a fiduciary [because to do so] is one of the last services a family member can perform for a loved one who has passed away.' Had Ken died a domiciliary of Florida, under Florida law Craig could not have served as his executor. Florida law requires that only a spouse, certain close relations or a Florida resident may serve as a personal representative and since, as Ken well knew, Florida would not recognize his marriage (and of course, Craig was clearly not a Florida resident) failing to change his domicile would have 'thwarted his wish' to have Craig serve as his executor."
The judge also noted many instances during those final months of his life when Ken had declared himself a New Yorker, including in a separate Canadian will executed to deal with their Canadian real estate holdings, "on all the official documents surrounding his marriage, his application for Social Security and Medicare, and his preliminary efforts to file income tax returns as a New York resident."
Having resolved the domicile issue against Ronald Ranftle, Surrogate Glen dismissed the petition to vacate the probate decree.
The case certainly illustrates the difficulties faced by same-sex partners in our mobile society as they travel from state to state or invest in property in different jurisdictions against a legal framework (encouraged by Section 2 of the federal Defense of Marriage Act) where some states will recognize same-sex marriages and others do not. This continuing patchwork system of marriage recognition is intolerable, which helps to explain why the effort to repeal DOMA continues to pick up support in Congress, including the recent addition of the first Republican co-sponsor in the House of Representatives.
Leiby was represented in defending probate of the will by attorneys Kevin J. Farrelly and Erica Bell (of the firm of Weiss, Buell & Bell).