BY ARTHUR S. LEONARD | Adding to the heft of appeals court precedents in New York recognizing same-sex marriages, the Appellate Division’s 1st Department, in Manhattan, has ruled that a marriage between two men performed in Canada in 2008 would be recognized in probate proceedings involving the will of the spouse who died.
The unanimous February 24 ruling by a four-judge panel, upholding New York County Surrogate Kristen Booth Glen’s refusal to allow the deceased man’s brother to contest the will, is the first such ruling by the appellate department that includes Manhattan and the Bronx. The ruling cites the 2008 4th Department decision from Rochester that ordered Monroe Community College, a public institution, to recognize a valid same-sex marriage of one of its instructors. The Albany-based 3rd Department has also ruled in favor of same-sex marriage recognition, upholding a policy in place at the State Department of Civil Service in 2009. Among the four appellate departments, only the Brooklyn-based 2nd has failed to issue a direct ruling on this question, though it has cited the Monroe ruling twice.
Third of four state appellate divisions now give credit to out-of-state unions
According to the court’s memorandum opinion, H. Kenneth Ranftle executed his last will and testament on August 12, 2008, two months after marrying Craig Leiby in Montreal. Ranftle appointed his spouse as the executor of his will, which includes an in terrorem clause, which warns beneficiaries not to contest its terms on penalty of disinheritance. Ranftle died two months later, and Leiby filed a petition for probate on December 12, 2008, identifying himself as the surviving spouse.
Under the will, Ranftle left bequests to his three brothers and a goddaughter, and named Leiby to receive the rest of his estate. Three days later, Surrogate Glen issued a decree granting probate, which she followed up with a written opinion on January 26, 2009.
Summarizing Glen’s finding, the appeals panel wrote, “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.”
The “natural law” exception to New York recognizing valid marriages is generally understood to apply to unions widely considered “abhorrent,” such as polygamous or incestuous ones.
One of Ranftle’s brothers, Richard, challenged Glen’s decree, claiming the marriage was not valid in New York and petitioning the Surrogate’s Court to vacate her probate decree and allow him to file objections. He claimed the court lacked jurisdiction to probate the will because recognizing the marriage would violate public policy. From Richard’s perspective, since his brother had no spouse, the three siblings were appropriately due notice of the probate hearing Glen presided over.
Denying the petition, Surrogate Glen cited the 2008 Monroe Community College decision, stating that Richard Ranftle’s argument “is patently without merit.”
“We agree,” wrote the Appellate Division panel, finding, “Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule.”
Ranftle argued that the State Senate’s December 2009 vote against the marriage equality bill 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.