| Matter of Perez |
| 2014 NY Slip Op 50544(U) [43 Misc 3d 1208(A)] |
| Decided on March 28, 2014 |
| Sur Ct, Nassau County |
| McCarty III, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
In the Matter of
Administration Proceeding, Estate of Luis S. Perez, Deceased.
|
A hearing was held in this contested proceeding for the issuance of letters of administration on February 28, 2014 on the issue of whether petitioner, Graciela Aquije f/k/a Graciela Perez, is decedent's surviving spouse. Decedent's children of a prior marriage, self- represented objectants here, claimed that their father's first marriage in Chile in 1969 had never been dissolved and thus the marriage between the decedent and the petitioner is invalid.
The parties testified and three exhibits were received in evidence: the marriage certificate and a document denominated "certificado de matrimonio," both emanating from the Chilean Civil Registry and Identification Services evincing the union between decedent Luis Sebastian Perez Zapata [d/o/b 9/8/1941] and Exilda Elena Acuna Berroeta on November 5, 1969; decedent's certified death certificate issued by the State of New York Department of Health listing petitioner as the surviving spouse; and, a certified copy of an affidavit, license and certificate of marriage from the same New York State agency and the City of Glen Cove of the marriage between petitioner and decedent [d/o/b 9/8/1941] performed on March 8, 1997.[FN1] Decedent and petitioner thereafter lived together as husband and wife for 14 years until his death [*2]in 2011. At the conclusion of the proofs, the parties made closing statements and the court reserved decision.
When there are two ceremonial marriages, there is a strong presumption that the subsequent marriage was valid (Matter of Brown, 40 NY2d 938 [1976] Mack v Brown, 82 AD3d 133 [2d Dept 2011] Matter of Gomez v Windows on the World, 23 AD3d 967 [3d Dept 2005]). The burden of proving invalidity is on the person challenging the later marriage and that burden has been described as heavy, frequently requiring proof of a negative (that the earlier marriage was not dissolved by death, divorce or annulment ) (Matter of Seidel v Crown Industries 132 AD2d 729 [3d Dept 1987] Matter of Esmond v Lyons Bar & Grill, 26 AD2d 884 [3d Dept 1966]).
Respondents came forward with no proof at all to overcome the strong presumption in favor of the validity of petitioner's marriage to decedent.
Accordingly, the objections are stricken and the petition is granted.
Settle decree.
Dated: March 28, 2014
EDWARD W. McCARTY III
Judge of the
Surrogate's Court