Estate of Schiffman

• Decision Date: 07 July 1980
• Citation: 105 Misc.2d 1025,430 N.Y.S.2d 229
• Parties: ESTATE of Rachel SCHIFFMAN. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 229

430 N.Y.S.2d 229

105 Misc.2d 1025

ESTATE of Rachel SCHIFFMAN.

Surrogate's Court, New York County.

July 7, 1980.

Allen G. Schwartz, Corp. Counsel, New York City (Seymour B. Mackwer, Lake Ronkonkoma, of counsel), for petitioner.

Wrenn & Schmid, Brooklyn (Malcolm B. Choset, Brooklyn, of counsel), for respondent.

Joseph T. Arenson, New York City, for Public Administrator of the County of New York.

MILLARD L. MIDONICK, Surrogate.

This is an application by the Commissioner of Social Services of the City of New York to revoke letters of administration, appoint a successor administrator and to set aside a renunciation filed by the administrator renouncing the decedent's intestate share in the estate of Jacob Schiffman, a predeceased son of decedent.

Jacob Schiffman died intestate on May 12, 1978. His mother, who was his sole distributee, died intestate a few months later on August 24, 1978. At the time of her death, decedent resided in a nursing home, the cost of which was paid for through Medicaid. Her sole asset was her interest in Jacob's estate, which she took no steps to secure before her death. One of her two surviving sons applied for letters of administration on her estate for the express, and sole, purpose of renouncing her interest in Jacob's estate. After letters were issued, and as required by EPTL 2-1.11, subd. (c), the administrator of her estate applied to this court for authority to renounce decedent's interest in Jacob's estate. In his petition, he not only pointed out that there might be claims against her estate for reimbursement of the Medicaid payments made on her behalf, but also stated unequivocally that the purpose of the renunciation was to deny the potential claimants the opportunity to reach the assets that would otherwise pass to her estate from Jacob's. With full knowledge, therefore, of the administrator's motives for renouncing the decedent's interest in her son's estate, the court approved his application. The effect of the renunciation was that Jacob's estate passed to the decedent's two brothers, one of whom is the administrator of the estate of the decedent herein.

The fact that both the purpose and result of the renunciation was to frustrate the claims of creditors in decedent's estate is not in itself a ground for setting aside the renunciation; for, it is by now well established, and, indeed, the petitioner himself concedes that renunciation may be used to defeat the rights of creditors. (Matter of Dankner, 86 Misc.2d 1081, 384 N.Y.S.2d 683; Matter of Hamilton, NYLJ, Dec. 15, 1972, p. 15, col. 1; Matter of Back, NYLJ, Dec. 9, 1977, p. 7, col. 3).

A renunciation of an intestate or testate share is made retroactive to the date of death of the deceased and must be treated as if no inheritance or gift ever passed to or vested in the person renouncing or, as here, in the person on whose behalf the renunciation is made. The inheritance therefore must be free of any claim of creditors, assignees or trustees in bankruptcy, regardless of their position vis a vis one...