Upon the following papers numbered 1-7 read on this motion for a protective order: Notice of Motion and supporting papers 1-3; Answering affirmation and supporting papers 4-5; and Reply affirmation and supporting papers 6-7; it is

ORDERED, that the motion for a protective order precluding respondent from engaging in SCPA 1404 discovery due to a lack of standing is granted; and it is further

ORDERED, that this matter be referred back to the probate department.

The decedent died testate on July 26, 2024. Petitioner, the nominated executor, petitioned to probate a document dated April 15, 2018 purporting to be decedent's last will and testament that left decedent's entire estate to petitioner. Respondent is not a named beneficiary in the purported will.

According to the petition filed on December 2, 2024, decedent had no spouse and children. Peggy Foy, Esq. filed a notice of appearance on behalf of respondent Nikolay Iankov, who claimed to be decedent's surviving spouse. As such, respondent's attorney served a Demand for SCPA 1404 examinations upon petitioner's attorney even though jurisdiction was not yet complete.

Petitioner has now moved for a protective order seeking to enjoin discovery on the ground that Nikolay lacks standing. Petitioner argues that respondent is barred from filing objections to probate and that respondent's request to examine witnesses pursuant to SCPA 1404 should be dismissed because he lacks standing to pursue or engage in discovery. Petitioner asserts that respondent and decedent were legally divorced prior to decedent's death and, pursuant to EPTL 5-1.4(a), a final judgment of divorce nullifies any previous disposition or fiduciary appointment in favor of a former spouse. Further, petitioner argues that a former spouse is no longer considered a distributee or interested party pursuant to SCPA 103(39), and therefore respondent has no standing to object to probate or pursue discovery in this probate proceeding. In support of his position, petitioner submitted a judgment of divorce dated June 21, 2018 from Sofia District Court in Bulgaria, transcript of the April 18, 2018 divorce proceeding in Bulgaria, and a reply from Nikolay dated May 28, 2018 to the court in Bulgaria. According to the divorce judgment, the decedent and respondent were married on April 12, 2014 and a certificate of marriage was issued by Stolichna Municipality in Bulgaria. In 2018, decedent filed for divorce in Bulgaria. It appears that upon receipt of Nikolay's May 28 reply, the Bulgarian court adjourned the April 18, 2018 proceeding to June 14, 2018 to provide him an opportunity to appear. Respondent, however, did not appear and the court in Bulgaria proceeded with the case without him.

In opposition, respondent argues that he has standing because he is still the lawful spouse of the decedent given that he and decedent were never divorced in New York State or any other state of the United States. He further asserts that the Bulgarian court did not obtain proper jurisdiction over him to issue the divorce judgment as he was not in Bulgaria at the time of the divorce proceeding and was not served with any paperwork. Respondent further argues that since the court in Bulgaria made no finding regarding property disposition he is, thus, entitled to decedent's estate.Finally, he claims that the judgment of divorce did not become effective until September 18, 2018, five months after the date of the purported will.

SCPA 1404(4) provides, in pertinent part, that "[a]ny party to the proceeding, before or after filing objections to the probate of will, may examine any or all of the attesting witnesses" and "the person who prepared the will." "'Generally a person who is not a distributee of the decedent and who will receive no part of a decedent's estate if a will is denied probate, will not be permitted to file objections to probate'" (In re Gottlieb, 75 AD3d 99, citing Matter of Wharton, 114 Misc 2d 1017). A distributee is "any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution" (SCPA 103[14]), such as a surviving spouse.

Pursuant to EPTL 5-1.2, in pertinent part, a person may be disqualified as a surviving spouse if there is a final decree of judgment of divorce recognized as valid under the law of this state and was in effect when the deceased spouse died. It is well established that judgments rendered in a foreign country are given full faith and credit under the doctrine of comity (see Badwai v. Alesawy, 135 AD3d 792, 793). Comity is extended to uphold the validity of a foreign divorce decree, absent a showing of fraud, coercion or violation of public policy (Matter of Gotlib v. Ratsutsky, 83 NY2d 696). Thus, a party challenging the foreign decree must establish that the decree was procured by fraud or coercion or is against public policy of this state.

Here, petitioner established that decedent's marriage to respondent was dissolved by a [*2]final judgment of divorce issued by Sofia District Court in Bulgaria prior to decedent's death. Respondent's claim that the foreign court lacked jurisdiction is belied by the record, which includes his reply to the Bulgarian court and that court's adjournment to allow his appearance. Respondent failed to present any evidence to suggest that the foreign decree was procured by fraud or coercion, nor has he articulated any basis upon which recognition of the foreign decree would violate New York public policy. Lastly, the fact that the foreign court did not address property division is immaterial to the issue currently before the court.

Respondent's argument that the divorce judgment became effective on September 18, 2018, after the execution of purported will is unavailing. The relevant date for determining standing is not the date of the execution of the will, but rather the date of death. EPTL 5-1.4 expressly provides that a final judgment of divorce, recognized as valid under New York law and in effect at the time of death, revokes any disposition makes to the former spouse. It further provides that the will would be interpreted as if the former spouse has predeceased the decedent. Accordingly, the legal effect of the judgment means that respondent no longer possesses a legally cognizable interest in the estate. Given that respondent is neither a distributee nor a beneficiary under the purported will, he is not a proper party to the probate proceeding and therefore has no legal basis to pursue SCPA 1404 discovery or file objections to probate.