Before the court is a petition and cross-petition for temporary letters of administration and letters of administration.

Decedent was survived by a sister (petitioner) and spouse (cross-petitioner). The sister contends that the spouse waived her status as a distributee in a pre-nuptial agreement dated September 2, 1994 and a post-nuptial agreement dated October 29, 2008, which purports to ratify the l994 agreement. Appended to both agreements is a certificate of acknowledgment.

The spouse alleges that the 2008 agreement is invalid on the grounds of fraud, undue influence and that it does not incorporate the intention of the parties and further on the grounds that the signature on the agreement is not hers. If the post-nuptial agreement is invalid, the spouse is the sole distributee of the estate. If the agreement is valid, the spouse has forfeited her share in intestacy (Matter of Stegman, 42 Misc 2d 273 [Sur Ct, Bronx County 1964]).

Post-nuptial agreements are afforded the same presumption of legality as any other contract and are presumed to reflect the intention of the parties (Bloomfield v Bloomfield, 97 NY2d 188 [2001]). In the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed (Matter of Phillips, 293 NY2d 483 [1944]). The spouse has not submitted an affidavit alleging facts which would support a determination that the agreement is invalid on the grounds of fraud or undue influence.

With respect to the spouse's signature, the acknowledgment is prima facie evidence that the document was signed by her (CPLR 4538). Petitioner has submitted an affidavit from an attorney who represented the decedent in the negotiation of the 2008 agreement. He states that [*2]the agreement was reviewed with counsel for the spouse and that the affiant was present when both parties executed the agreement. In the absence of an affidavit from the spouse stating that the facts are otherwise, there is presently no issue of fact as to the validity of her signature (cf Matter of Beckford, 280 AD2d 472 [2d Dept 2001]).

Further, the spouse has not challenged the validity of the 1994 pre-nuptial agreement in which there is a wavier of all rights to property by virtue of the marriage.

Both parties agree that there is currently a need for temporary letters of administration to manage a hardware store and residential real estate. Petitioner states in her affidavit that she worked at the hardware store and has sufficient knowledge to manage its day-to-day operation.

The court directs that temporary letters of administration issue to petitioner, decedent's sister, upon her qualification according to law.

This matter will appear on the court's calendar on September 12, 2013, at 9:30 a.m., for a conference to schedule pre-trial discovery prior to a hearing to determine whether the spouse has waived her interest in the estate.

This is the decision and order of the court.

Dated: July 23, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court