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Partner John Farinacci Wins Landmark
Reversal in Elder Exploitation Case

Irving Berk, a successful business man, died in 2006 at the age of 100. Shortly after his death, it was discovered that Berk’s caregiver, age 47, married him a year prior to his death and procured asset transfers of more than a million dollars in the two years prior to his death. Berk’s will provided that his children and grandchildren share in his estate valued at approximately $7 million. John Farinacci represented the Berk Estate, which consisted of his two sons. 
The facts revealed during discovery established that the asset transfers and marriage were procured at a time in which the decedent lacked capacity and that Berk was the subject of abuse and exploitation. Nevertheless, the Surrogate granted summary judgment in favor of the wife on the issue of her status as a surviving spouse and her right to elect against the decedent’s estate entitling her to a third of his assets. The Surrogate held, consistent with the then prevailing caselaw, that EPTL Article 5 mandated that the right of election is inalterable unless there is a divorce, an annulment, incest or bigamy.
  On appeal, the Second Department reversed the Kings County Surrogate’s Court grant of summary judgment. Matter of Berk, 71 A.D.3d 883, 897 N.Y.S.2d 475 (2d Dept. 2010). This was the first time the Second Department held that equity can apply to prevent a wrongdoing spouse from benefiting from such conduct despite the strict provisions of the spousal disqualification statute.  
  John Farinacci was assisted by associate Jessica Baquet on the appeal.