In this accounting proceeding by the Public Administrator to allocate and distribute proceeds of causes of action arising from the decedent's death, the novel and narrow issue presented for resolution is whether this court may approve a proposed division of one spousal share between the decedent's two spouses to whom he was legally married under the laws of Senegal. Upon consideration of all facts, the applicable New York law and public policies and the conceded law of Senegal, the court allows distribution in the manner requested.

The decedent died on September 13, 1997 at the age of 42, when, while attempting to enter an elevator, he fell down the shaft and was struck by the elevator's counterweight mechanism. The underlying action was commenced and venued in the Supreme Court, Bronx County based on the decedent's residence at the time of his death. The Supreme Court, Bronx County (Silver, J.) approved a compromise and referred all issues relating to the payment of liens, allocation and distribution to this court.

It is undisputed that although the decedent resided in the Bronx at the time of his death, he was a citizen and domiciliary of Senegal. As the decedent died a domiciliary of Senegal, the subject matter jurisdiction of the court is based on SCPA 206, as the underlying wrongful death and other causes of action were commenced against a New York domiciliary. It is also undisputed that the decedent was survived by two spouses, to whom he was legally married under the laws of Senegal, and by eleven children. The two spouses and children always were, and remain, citizens and domiciliaries of Senegal and live at the same address in Dakar, Senegal. At the time of the decedent's death, only one of the eleven children was an adult; however, by the time this proceeding was commenced and a guardian ad litem was appointed for the benefit of five infant children, an additional five children had reached the age of majority, and subsequently, two more became adults.

Jurisdiction was acquired over the two spouses and all children, and they defaulted. After [*2]the guardian ad litem filed a report pointing to certain errors in the petition, the petition was amended to correct those and other errors. The guardian ad litem approves the application, as amended.

Under the circumstances presented, including the lack of any unsatisfied debts or liens presented herein and that the decedent never regained consciousness, the request to allocate the entire proceeds to the wrongful death cause of action is granted. Disbursements and attorney's fees are allowed in the sum requested, to be shared by counsel pursuant to their agreement.

With respect to remaining issues of distribution, the net wrongful death proceeds constitute "fair and just compensation for the pecuniary injuries" resulting or arising from the decedent's death (EPTL 5-4.3 [a]), and such damages "shall be distributed to the persons entitled thereto under [EPTL] 4-1.1 and 5-4.5" (EPTL 5-4.4). EPTL 4-1.1 (a) (1) identifies one class of distributees as "[a] spouse and issue," whereas EPTL 5-1.2 (a) (2) disqualifies a "surviving spouse" where it is satisfactorily established to the court that the marriage was "bigamous" under section six of the Domestic Relations Law (see EPTL 5-1.2 [a] [2]; Domestic Relations Law § 6). It is uncontroverted that the law of Senegal permits polygamy and, therefore, does not provide a similar disqualification for bigamous marriages.

Thus, under the narrow circumstances presented, there is an apparent conflict between EPTL 5-1.2 (a) (2), EPTL 4-1.1 (a) (1) and Domestic Relations Law § 6 on the one hand, and the law of Senegal on the other hand, which raises the question of whether the proposed distribution of one spousal share of the wrongful death proceeds, to be divided between the two spouses in the shares requested, which is permitted under the laws of Senegal, comports with, or is in conflict with, the distributive scheme of New York law and public policy.

The courts of New York narrowly interpret the term "a spouse" as it appears in EPTL 4-1.1 (a) (1) and Domestic Relations Law § 6, to exclude same-sex partners in this state and same-sex partners who validly entered into civil unions under the laws of another state from the intendment of those statutes (see Langan v St. Vincent's Hosp., 25 AD3d 90 [2005], appeal dismissed 6 NY3d 890 [2006]; see also Hernandez v Robles, 7 NY3d 338 [2006]; cf. Martinez v County of Monroe, 50 AD3d 189 [2008], appeal dismissed 10 NY3d 856 [2008]. Such case law is clearly distinguishable from the situation presented, involving heterosexual marriages by persons never domiciled in this state and who validly entered into the marriages under the laws of a sovereign nation where they were always domiciled (see Intercontinental Hotels Corp. v Golden, 15 NY2d 9, 12 [1964]; Matter of Bir, 83 Cal App 2d 256, 188 P2d 499 [1948]; see also Matter of May, 305 NY 486 [1953]; Campione v Campione, 201 Misc 590 [1951]). Nonetheless, the same-sex case law and Domestic Relations Law § 6 preclude, as a general rule, the term "a spouse" to include more than one spouse as a statutorily recognized distributee under EPTL 4-1.1 (a) (1).

Here, there is no dispute that the decedent was survived by (at least) one spouse and issue. Therefore, the underlying purposes of EPTL 5-4.4 and 4-1.1 are satisfied, as the class of distributees who are entitled to prove they suffered pecuniary injuries is identified, thereby foreclosing other potential classes of distributees from seeking a share of the settlement proceeds. As New York statutes and public policy permit the distribution of only one spousal share where a decedent is survived by a spouse and issue (see EPTL 4-1.1 [a] [1]; 5-4.4), any interest of New York State in enforcing its distribution statute is satisfied by the award and distribution of one [*3]spousal share (albeit to be shared by two wives in accord with the law of Senegal), with the remaining proceeds distributed to the decedent's ten children who were under the age of 21 at the time of his death. The state's interest in protecting the distributive shares of infants is also met, as the single spousal share to be divided by the two spouses neither enlarges that spousal share nor diminishes the proposed shares to be paid to the children, including those who remain infants. As New York State has not, by statute, enunciated any interest in how the one spousal share is divided after it is awarded pursuant to EPTL 4-1.1 (a) (1), and this court cannot discern any such state interest (see e.g. Gibson v Hughes, 192 F Supp 564 [SD NY 1961]; Matter of Bir, 83 Cal App 2d at 262, 188 P2d at 502), the single spousal share awarded may be paid to the two spouses in the shares requested in the petition, and the proposed distribution is approved. Of course, the result reached herein might very well be different if, at the time of either marriage, any of the three parties involved was not a domiciliary of a jurisdiction that recognizes a polygamous marriage.

The infants' shares of the proceeds are to be held in an interest-bearing escrow account by the petitioner's attorneys until the appointment of a guardian of the infants' property, at which time, the amount in escrow is to be paid to the guardian of the infants' property jointly with the Guardianship Clerk of the court, subject to the further order of this court. If no one petitions for guardianship of the property of the infant distributees within 60 days from the date of this decision, any such share shall be paid to the Commissioner of Finance of the City of New York for the benefit of said infants.

Decree signed.

SURROGATE