New York County Surrogate’s Court Judge Nora Anderson has rejected a challenge to the will of Mauricio Leyton, a gay man who had designated his former lover as executor and a principal beneficiary under a will he made in 2001, a year before the men had a commitment ceremony and several years before they ceased to live together as partners. Leyton’s mother and sister had challenged the will, arguing that David Hunter was disqualified under a New York statute providing that a “former spouse” cannot inherit. On June 16, Surrogate Anderson granted Hunter’s motion to dismiss the challenge. The case is Matter of Mauricio Leyton, Deceased, No. 2013-4842/A/B (N.Y. County Surrogate’s Court).
Leyton and Hunter were longtime friends of ten years’ standing when Leyton signed his will on January 11, 2001. He appointed Hunter to be his executor and a major beneficiary, leaving him all of his personal property and one-half of the residuary estate, which ultimately included real property as well. The will referred to Hunter as “my partner David,” according to a June 23 report about the case in the New York Law Journal. In 2002 the men had a commitment ceremony at the Ritz-Carlton Hotel, which they described in printed invitations as a “Ceremony of Union and Commitment,” during which the officiant said that the couple was entering a “state of companionship, compromise, creativity and commitment that the world recognizes as marriage.” The officiant also noted that the state did not recognize this union, but commented, “Fortunately, this is of no importance.”
Leyton and Hunter did not register as New York City civil union partners and ceased to live together around 2008, but remained close friends, owning some property jointly and maintaining some joint accounts. They signed a document at the time of their breakup in which, according to the Law Journal account, Leyton “expressed interest in buying out Hunter’s ownership in a cooperative apartment and lending Hunter $40,000 to buy another apartment.” They also co-owned some property on Long Island as joint tenants with rights of survivorship. After New York passed its Marriage Equality Law in 2011 Leyton served as the official witness when Hunter married another man. In all this time Leyton never revoked the original will or signed a new one. Leyton suffered a fatal heart attack in December 2013 while traveling.
Hunter filed the will for probate in 2014, and Leyton’s mother and sister, residents of Chile, sought to contest Hunter’s appointment as executor and status as a beneficiary. They argued that the court should treat Hunter as a divorced spouse, emphasizing the words of the officiant at the commitment ceremony, and arguing that but for New York’s unconstitutional refusal to allow same-sex marriage at the time, the men would have been married. They relied on a recent Connecticut Supreme Court decision, which had accepted such a “would have been married” argument in connection with a loss of consortium claim filed by the survivor of a lesbian relationship in the context of a medical malpractice claim.
Surrogate Anderson did not mention the Connecticut case in her opinion, focusing her analysis entirely on the New York statute. “Respondent (Hunter) points out that at the time the commitment ceremony was performed, it was not cognizable in State law as formalizing a marriage, and that his subsequent break with decedent therefore was not ‘separation,’ ‘abandonment,’ or ‘divorce’ within the meaning of the statutes cited by petitioners. Those statutes, EPTL 5-1.2 and 5-1.4, respectively spell out circumstances under which a spouse is disqualified as a ‘surviving’ spouse for the purposes of inheritance and other family rights and under which a disposition to or fiduciary appointment of a spouse under a will is revoked,” she wrote. She insisted that “it is the province of the Legislature to decide questions regarding same-sex marriage,” referring to the New York court decisions rejecting constitutional challenges to the pre-2011 marriage ban. “Here, petitioners seek to have this court apply the Marriage Equality Act retroactively to the commitment ceremony, deeming that ceremony as formalizing a marriage and the subsequent separation as a divorce. Given that the Legislature did not authorize same-sex marriage until 2011, this court cannot deem the commitment ceremony to have sanctified a marriage, so decedent and the executor cannot be deemed to be divorced.”
Thus, Surrogate Anderson ruled that the petition should be denied and Hunter’s motion to dismiss be granted.
Hunter is represented by Matthew Raphan, an associate of Brian A. Raphan P.C. in Manhattan. The mother and sister, Fidelisa Eliana Latorre Figueroa and Ana Marie Leyton Lattore, are represented by Stanley Ackert III, who is contemplating filing an appeal.