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  • Writer's pictureBrian A. Raphan, Esq.

Surrogate Court Affirms Bequest To Same-Sex Ex-Partner

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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