In this contested accounting proceeding, the decedent's wife, as executor of the estate, moves for summary judgment dismissing the objections of the decedent's children from a prior marriage. The objections relate to certain IRA and investment accounts held by the decedent which named the surviving spouse as the primary beneficiary of all the accounts. The objectants contend that the court should impose a constructive trust on those assets for the benefit of the estate.

It is uncontroverted that the surviving spouse is the named beneficiary on all such accounts and has been since 1997. The objectants contend that the decedent's execution of the will which was admitted to probate which contains trusts for the lifetime benefit of the spouse with remainder to the children is clear evidence of his intention to change the beneficiary designations on the subject IRA and investment accounts. They argue that the court should honor that intention by denying the spouse's motion for summary judgment and imposing a constructive trust on the assets.

The oft-stated requirements for the imposition of a constructive trust are: (i) a confidential or fiduciary relation; (2) a promise; (3) a transfer in reliance thereon; and (4) unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Losner v Cashline, LP, 41 AD3d 789, 790 [2d Dept. 2007]). Here, even assuming the objectants were able to establish a confidential relation and unjust enrichment, there is absolutely no evidence either that the decedent's naming of the surviving spouse as beneficiary was pursuant to a promise, express or implied, nor that the beneficiary designation was made in reliance on that promise. In fact, the objectants do not even contend that any such promise was even contemplated at the time of the beneficiary designation, which occurred more than four years prior to the execution of the decedent's will.

The objectants' reliance on Simonds v Simonds (45 NY2d 233 [1978]) is misplaced. In Simonds, the decedent was obligated to maintain a life insurance policy naming his first wife as beneficiary pursuant to a divorce decree terminating the marriage. After his death, the Court affirmed the imposition of a constructive trust in favor of the first wife on the proceeds of a life insurance policy naming the second wife as beneficiary, finding the decedent had defaulted on his legal obligation to maintain the policy. Here, there was no such obligation on the part of the surviving spouse.

Rather than constructive trust, this case is more akin to those where the decedent either neglected or, for whatever reason, failed to change the beneficiary designation on a life insurance [*2]policy, pension or retirement benefit, or Totten trust account, and the party or parties who feel equitably entitled to the proceeds thereof petition the courts to do what the decedent failed to do. Regardless of the equities involved, the courts have consistently held in such instances that, absent substantial compliance with the requirements for changing the beneficiary designation, the named beneficiary is entitled to the proceeds (see McCarthy v Aetna, 92 NY2d 436 [1998][decedent's ex-wife entitled to proceeds of life insurance policy where decedent made no attempt to change beneficiary designation]; Storozynski v Storozynski, 10 AD3d 419 [2d Dept. 2004][decedent's ex-wife granted summary judgment that she was entitled to proceeds as designated beneficiary on IRA]; Matter of Eredics, 100 NY2d 106 [2003][decedent's ex-wife granted summary judgment that she was entitled to proceeds of Totten trust account]).

Accordingly, there being no issue of fact presented, the movant is entitled to summary judgment (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) and the objections are dismissed.

Settle decree.

Dated: October 2, 2007

JOHN B. RIORDAN

Judge of the

Surrogate's Court [*3]