Greenberg Freeman obtains summary judgment in legal malpractice action.
In New York, if a person dies while married, his or her surviving spouse is entitled to the greater of $50,000 or one-third of the decedent’s net estate, even if the decedent’s will or estate plan provides otherwise, as long as the surviving spouse properly exercises his or her “spousal right of election.” In this case, after her husband had died, a widow discovered that her husband had secretly written a will that left all of his assets to his children from his first marriage. The widow consulted with a lawyer, who properly advised her to exercise her spousal right of election, but the lawyer then failed to fulfill the statutory requirements for her doing so, resulting in the dismissal of the widow’s claim against her husband’s estate. After the widow died, the widow’s estate retained Greenberg Freeman to sue the lawyer for legal malpractice. Sanford Greenberg and Michael Freeman, working together, successfully argued that, since the surrogate’s court had already dismissed the widow’s claim and that decision was affirmed on appeal, the lawyer was barred from re-litigating the question of whether his actions caused the widow to forfeit her spousal right of election. This led the court to grant summary judgment in favor of the widow’s estate and against the attorney, resulting in a favorable settlement of the claim.