Surrogate Court Affirms Bequest To Same-Sex Ex-Partner

As Published in The New York Law Journal

Decedent’s Former Partner Can Inherit Estate, Judge Says

Andrew Keshner, New York Law Journal

Matthew Raphan
New York Law Journal 6/23/15

A same-sex couple who held a commitment ceremony but broke up years before New York state legalized gay marriage never formally divorced in the eyes of the law, a judge has ruled.

And because the couple never divorced, Manhattan Surrogate Nora Anderson reasoned, the bequest one man made to his former partner in an estate with assets worth more than $1 million was not voided by state laws that disqualify inheritance to a divorced spouse.

In 2002—nine years before the 2011 enactment of the Marriage Equality Act—Mauricio Leyton and David Hunter gathered their friends and family at the Ritz-Carlton Hotel in lower Manhattan for what the invitation billed as a “Ceremony of Union and Commitment.” The officiant said the pair, who had been together for about 10 years, was entering a “state of companionship, compromise, creativity and commitment that the world recognizes as marriage.” She said “the state will not legally recognize this union. Fortunately, this is of no importance.”


A year before the ceremony, Leyton created a last will and testament, which named Hunter as the executor. He said Hunter was entitled to his personal property and one-half of the residuary estate. Leyton referred to Hunter in the will as “my partner David.” He and Hunter did not enter a civil union and broke up around 2008. When they separated, they signed a document in which Leyton expressed interest in buying out Hunter’s ownership in a cooperative apartment and lending Hunter $40,000 to buy another apartment. But up through the time of Leyton’s death, he and Hunter co-owned property in Long Island, held as joint tenants with rights of survivorship. They stayed on good terms after their separation.In 2013, with New York laws now recognizing same sex marriage, Hunter married another man. Leyton attended the ceremony, acting as the wedding’s sole official witness. Leyton died in December 203 of a heart attack, at age 52. He worked in the travel industry and was an actor, said Hunter’s attorney, Matthew Raphan, an associate at Brian A. Raphan, P.C. in ManhattanLeyton’s will was admitted to probate in May 2014. According to court papers, assets are listed as worth more than $1 million. His mother and sister, beneficiaries living in Chile, moved to revoke Hunter’s executor status and nullify his status as a beneficiary. The mother, Fidelisa Eliana Latorre Figueroa, and sister, Ana Marie Leyton Latorre, pointed to law including New York’s Estates, Powers & Trusts Law 5-1.4. Under the provision, a divorce revokes a will’s distribution to a former spouse. The mother and sister said in their petition that the statute applied because of “the wrongful and unconstitutional deprivation of the right to marry and the concomitant right to divorce.” They said that “as a matter of right and equity,” the Estates, Powers & Trusts Law provision should govern.

Not applying the statute would create the “counterintuitive consequences contrary to decedent’s natural and expressed intentions, including giving David Hunter one-half of the proceeds from the sale of the New York apartment for which he had already been paid his one-half interest,” the women said. But Hunter’s opposition papers said it was a “legal impossibility” for the couple to be married in 2002 and the Marriage Equality Act of 2011 did not have retroactive effect. Hunter said he and Leyton were “under no illusion” that their 2002 ceremony was a recognizable equivalent to marriage in the state. Furthermore, there was no indication the will did not express Leyton’s last wishes, Hunter said.

“The decedent had ample time and opportunity to execute a subsequent will after the romantic relationship between the parties ended, but chose not to,” he said, noting their continuing joint ownership of property, bank accounts and credit cards up through Leyton’s death.

When denying the mother and sister’s petition for retroactive application of the Marriage Equality Act, Anderson said it was the Legislature’s role to decide matters relating to same sex marriage.”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,” she said in Matter of the Estate of Mauricio Leyton, 2013-4842.

In an interview, Raphan said he was pleased with the outcome, adding there was “simply no precedent” for retroactive application of the Marriage Equality Act.

There is “no precedent for the courts in the state of New York to assume the existence of marriages and dissolution thereof without any basis in law,” Raphan said.

Stanley Ackert III of Claverack, who represented the mother and sister, could not be reached for comment.

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BB King heirs to challenge his Will and actions of manager

Associated Press in Las Vegas

Lawyer for daughters and other heirs alleges business manager misappropriated millions, had been untruthful and was unqualified to be executor.

BB King's Will

A lawyer representing a group of BB King’s heirs said on Saturday they would challenge the blues legend’s will and the actions of his longtime business manager-turned-executor of his affairs.

Attorney Larissa Drohobyczer issued a statement early on Saturday, just hours before a private memorial service in Las Vegas.

King was 89 when he died at his home in Las Vegas earlier this month. Fans lined up for a public viewing of his body on Friday. His body will be flown back to Memphis, Tennessee, on Wednesday. A tribute is scheduled that day at WC Handy Park on Beale Street.

A public viewing is scheduled for Friday at the museum that bears his name in Indianola, with a funeral on Saturday at nearby Bell Grove Missionary Baptist church. He will be buried during a private service on the museum grounds.

Drohobyczer’s statement alleged that LaVerne Toney had misappropriated millions of dollars, had been untruthful, had “undue influence” and was unqualified to serve as executor of the estate.

Drohobyczer says she met with five adult King daughters – Patty King, Michelle King, Karen Williams, Barbara King Winfree and Claudette King Robinson – and several other heirs before issuing the statement.

Toney told the Associated Press that she was not going to immediately respond. She said she hoped Saturday’s memorial would be calm, peaceful and respectful.

Hundreds of fans, meanwhile, were expected on Sunday at the 35th annual BB King Homecoming Festival, a free gathering that the legendary bluesman started in his hometown, Indianola.

Performers were scheduled to include a country blues band called the North Mississippi Allstars; a Bentonia, Mississippi, blues guitarist and singer, Jimmy “Duck” Holmes; and a children’s choir based at the BB King Museum and Delta Interpretive Center in Indianola.

King played at the free festival dozens of times. He drew a larger than usual crowd in 2014, which was already billed as the final homecoming performance for the King of the Blues.

While King was alive, organisers were planning this year’s event as a tribute to him. Since his death on 14 May, they have called it a memorial celebration. The festival is held on the grounds of the museum that opened in 2008.

“We certainly will miss his infectious smile and warmth this year, but we have no doubt he would want us to carry on with this tradition,” the museum’s executive director, Dion Brown, said in a statement.

For 5 Reasons to Review Your Will click here.

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The Law Offices of Brian A. Raphan, P.C.

7 Penn Plaza, New York, NY 10001



Using a No-Contest Clause to Prevent Heirs from Challenging a Will or Trust

If you are worried that disappointed heirs could contest your will or trust after you die, one option is to include a “no-contest clause” in your estate planning documents. A no-contest clause provides that if an heir challenges the will or trust and loses, then he or she will get nothing.

Last Will & TestamentA no-contest clause may be a good idea if you have a beneficiary who may be upset by the property distributed to him or her. However, no-contest clauses (also called in terrorem clauses) only work if you are willing to leave something of value to the potentially disgruntled heir. You must leave the individual enough so that a challenge is not worth the risk of losing the inheritance.

Most states allow no-contest clauses, but there may be restrictions. In many states, if the contest is based on probable cause or good faith, then the no-contest clause is unenforceable. That means that if the court determines there is a good reason for the contest, the clause won’t prevent the challenging heir from inheriting. In addition, a no-contest clause may apply to some portions of your estate plan, but not others. For example, your heirs may be able to challenge your executors without violating a no-contest clause.

Two states –Florida and Indiana — will not enforce no-contest clauses no matter what. If you write your will in a state that enforces no-contest clauses and then move to Florida or Indiana, the no-contest clause will be void.

If you include a no-contest clause in your estate plan, you need to be sure there are no mistakes. If you leave out important property or aren’t clear about property in your possession, your heirs could be completely disinherited if they try to fix any mistakes.

While a no-contest clause can be a good tool, there are other ways to discourage a will contest. To contact me about Wills or this info email:

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Regards, Brian