A Manhattan Surrogate Court has rejected a challenge to the will of a gay man who had designated his then-lover as its executor and a principal beneficiary several years before they broke up.
Surrogate Nora Anderson, on June 16, dismissed efforts by Mauricio Leyton’s mother and sister to disqualify the former partner, David Hunter, based on a New York statute providing that a “former spouse” cannot inherit. Leyton made the will in 2001, and a year later the two men held a commitment ceremony.
Leyton and Hunter had been friends for a decade when Leyton signed his will on January 11, 2001. In addition to making Hunter his executor, Leyton left him all of his personal property and one-half of the rest of the estate not otherwise bequeathed, which ultimately included real property. The will referred to Hunter as “my partner David,” according to a June 23 story about the case in the New York Law Journal.
In 2002, the men had a commitment ceremony, which they described in printed invitations as a “Ceremony of Union and Commitment.” In the service, the officiant said that the couple were 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 never registered as New York City domestic partners — the one legal option open to them at that time — and they stopped living together around 2008. They seemed to have remained close friends, however, owning some property jointly and maintaining some joint accounts. They signed a document at the time of their break-up 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 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.
Through all this time, Leyton never revoked the original will or signed a new one. In late 2013, while traveling, he suffered a fatal heart attack.
Hunter filed the will for probate in 2014, and Leyton’s mother and sister, residents of Chile, sought to contest his appointment as executor and his status as a beneficiary. The court, they argued, should treat Hunter as a divorced spouse, emphasizing the words of the commitment ceremony’s officiant. But for New York’s unconstitutional refusal to allow same-sex marriage at the time, the men would have been married, they maintained. On this point, they relied on a recent Connecticut Supreme Court decision, which accepted such a “would have been married” argument by the survivor of a lesbian relationship in a medical malpractice claim.
Surrogate Anderson did not mention the Connecticut case in her opinion, focusing entirely on New York law. Hunter, she noted, said that in 2002 the couple’s commitment ceremony was not recognized in state law as a marriage, so “his subsequent break with decedent therefore was not ‘separation,’ ‘abandonment,’ or ‘divorce’ within the meaning of the statutes cited by” Leyton’s mother and sister. Noting that the state’s highest court had rejected a constitutional claim of same-sex marriage rights, Anderson wrote “it is the province of the Legislature to decide questions regarding same-sex marriage. 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.”
Since the Legislature did not authorize same-sex marriage at the time Hunter and Leyton had their commitment ceremony, the petitioners did not have a valid argument, Anderson concluded. “This court cannot deem the commitment ceremony to have sanctified a marriage, so decedent and the executor cannot be deemed to be divorced,” she wrote, granting Hunter’s motion to dismiss the petition.
Stanley Ackert III, who represented the mother and sister, Fidelisa Eliana Latorre Figueroa and Ana Marie Leyton Lattore, is contemplating filing an appeal.