In re the Estate of Starr

John D. Bennett, S.

This is a proceeding, under section 201 of the Surrogate’s Court Act, by the surviving husband of the deceased to compel the executrix to set apart property exempt to him under section 200 of the Surrogate’s Court Act, consisting of the sum of $1,000. No answer to the petition has been filed, and the matter has been submitted for decision upon the papers and memoranda of law.

The memorandum submitted by the executrix raises two objections to the relief sought. The first of these objections is that the petitioner is precluded from making this claim because of a waiver executed by him on October 7, 1949. This waiver, a copy of which is annexed to the petition, waives the right to elect against any will pursuant to the provisions of section 18 of the Decedent Estate Law, and agrees to refrain from any action or proceeding to avoid or nullify the terms of any will. Such a waiver does not prevent the spouse from inheriting as a distributee, or claiming any rights against the estate of a spouse dying intestate. Hence it does not come within the provisions of the last paragraph of section 200 of the Surrogate’s Court Act.

The second objection raised by the respondent is that by taking under the provisions of the will, the spouse exercises an election and cannot take under section 200. The principle of election is applicable only where the provisions of the will are in lieu of the provisions made by law, a situation which is present in the cases cited by the respondent. In the present case, the provisions for the husband contain no statement that they are in lieu of the provisions of the statute, and there is no language in the will implying that it is so intended. The petitioner may take his benefits under the will, and also those provided under section 200 of the Surrogate’s Court Act.

Even where the provisions of the will are in lieu of all claims by way of election or otherwise, the courts have held that the acceptance of the benefits under the will does not bar the right to exempt property under section 200 (Matter of Bernanke, 20 Misc 2d 773).

The court therefore grants the prayer of the petition to the extent of directing the executrix to set apart the sum of $1,000 for the petitioner, as and for his widower’s exemption, and to pay over to him said sum less any amount which might be due therefrom for estate taxes.

Settle decree on five days’ notice in accordance herewith.