In re the Estate of Wilson , 411 N.Y.S.2d 685 ( 1978 )

In a proceeding to determine the validity of an election by Earlene Wilson (Earlene), the surviving spouse, to take her statutory share against the provisions of the last will and testament of Robert J. Wilson, deceased, the said surviving spouse appeals from an order of the Surrogate’s Court, Suffolk County, entered October 17, 1977, which, after a nonjury trial, denied her a right of election. Order reversed, on the law and the facts, with costs to appellant payable out of the estate, and appellant’s right of election is determined to be valid. The record does not support the finding of the Surrogate that the testimony of the witnesses for Earlene appeared to be rehearsed and therefore unworthy of belief. The evidence adduced supports the conclusion that the Wilsons were not physically separated at the time the separation agreement was executed; nor did they ever separate thereafter. Illustrative of this is the significant fact that in September, 1968, slightly more than two years after the date of the separation agreement (August 2, 1966), Robert and Earlene Wilson successfully petitioned the Surrogate’s Court (as husband and wife) to adopt as their son Clifford Elvis Wilson, the administrator c. t. a. and residuary devisee (and legatee) under the last will and testament at issue. The law is well settled that a contract for the future separation of a husband and wife is against public policy and is thus unenforceable. In order for such an agreement to be valid the parties must have actually separated before making the agreement or the separation must immediately follow its execution. (Matter of Dail, 29 Mise 2d 809, affd 14 AD2d 850; Whedon v Whedon, 247 App Div 463.) Here, since the agreement was void, its provisions never took effect. Accordingly, we hold that the election filed by Earlene is valid and subsisting. In our view the cases cited in the dissenting memorandum are inapposite to the issue at bar. Gulotta, Shapiro and Cohalan, JJ., concur.