- The Marriage Equality Act is Not Retroactive, So Decedent’s Former Partner Can Inherit His Estate
- No Dedication, No Park
- MTA’s New Policy Creates a Limited Public Forum
The Marriage Equality Act is Not Retroactive, So Decedent’s Former Partner Can Inherit His Estate
In Matter of the Estate of Leyton, a Manhattan Surrogate recently ruled that a same-sex couple who held a “commitment ceremony” but broke up years before New York State passed the Marriage Equality Act legalizing gay marriage, could not formally divorce because their ceremony was not a marriage under the Act. As a result, the bequest made by one of the men to his former partner in an estate with assets worth more than $1 million, was not voided by New York’s laws that disqualify inheritance to a divorced spouse named in a will.
A petition was brought by the decedent’s mother and sister who sought to disqualify the former partner under New York’s Estates, Powers and Trusts Law (“EPTL”). The EPTL provides:
(a) Except as provided by the express terms of a governing instrument, a divorce . . . or annulment of a marriage revokes any revocable (1) disposition or appointment of property made by a divorced individual to, or for the benefit of, the former spouse, including, but not limited to, a disposition or appointment by will, by security registration in beneficiary form (TOD), by beneficiary designation in a life insurance policy or (to the extent permitted by law) in a pension or retirement benefits plan, or by revocable trust, including a bank account in trust form, (2) provision conferring a power of appointment or power of disposition on the former spouse, and (3) nomination of the former spouse to serve in any fiduciary or representative capacity, including as a personal representative, executor, trustee, conservator, guardian, agent, or attorney-in-fact.
According to the recent decision, the decedent’s mother and sister argued that because the former partner, who was also named as the executor under the will, and the decedent, both men, entered into a commitment ceremony in New York in 2002, but thereafter separated, the former partner is a “former spouse” who is disqualified pursuant to the provisions of the EPTL and thus cannot inherit from the estate. “Petitioners contend that because the minister at the commitment ceremony observed that the executor and decedent were entering into a state of companionship that the world recognizes as marriage, they were in fact married, and therefore their subsequent separation was a divorce.”
The Court disagreed, holding that it is the “province of the Legislature to decide questions regarding same-sex marriage. It was not until 2011 that the State of New York passed the Marriage Equality Act. Here, petitioners seek to have this court apply the Marriage Equality Act retroactively to the commitment ceremony, deeming that ceremony as formalizing a marriage and the subsequent separation as a divorce. Given that the Legislature did not authorized same-sex marriage until 2011, this court cannot deem the commitment ceremony to have sanctified a marriage, so decedent and the executor cannot be deemed to be divorced.”
Accordingly, the Court denied the petition of the mother and sister, and the former partner gets the estate. It may be time to revisit your will.
No Dedication, No Park
In our November 11, 2014 Newsletter we reported on the case of Matter of Glick v. Harvey, in which the Appellate Division, First Department, reversed a New York Supreme Court order which had enjoined New York University from beginning any construction in connection with its expansion project that would result in any alienation of four parcels of land found by the Supreme Court to be public parkland, unless and until the State Legislature authorizes the alienation of any parkland to be impacted by the project. According to the petition, the project involved the construction of about two million square feet in four high rises on two university-owned blocks in Greenwich Village, needed for faculty housing.
Last month, the highest court in New York State, the Court of Appeals, upheld the Appellate Division’s reversal. In addition to the parties, there were several amici curiae. An amicus curiae (literally, friend of the court; plural, amici curiae) is someone who is not a party to a case, but who believes the Court’s decision may affect its interests, and offers information that bears on the case to assist a court in reaching its decision. They included: Friends of La Guardia Place; Inc.; New York Civic; New York State Legislators; New Yorkers for Parks; New York State Conference of Mayors and Municipal Officials; The Association of Towns of the State of New York; and the Sierra Club.
The Court fashioned the question before it as follows: “The issue before us is whether four parcels of municipal land in the Greenwich Village area of New York City near the campus of New York University (NYU) were impliedly dedicated as public parkland and therefore fall under the protection of the public trust doctrine, which requires approval of the State Legislature before the land can be alienated.”
According to the decision, the “four disputed parcels, which are Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run, feature open space that has been available to the public for years. Two of the parcels (Mercer Playground and LaGuardia Park) will be inaccessible during construction and have been approved for later dedication as parkland, subject to perpetual easements granted to NYU for utilities and access. LaGuardia Corner Gardens will be affected during construction as well as by shadows that will result from a building being constructed as part of the project. The Dog Run will be moved to a nearby space.”
In support of their appeal, petitioners again advanced their argument that the City’s actions manifest its intent to impliedly dedicate the parcels as parkland. “Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the Legislature. A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that: (1) ‘[t]he acts and declarations by the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication’ and (2) that the public has accepted the land as dedicated to a public use.”
The Court held that “[i]t remains an open question whether the second prong of the implied dedication doctrine applies to a municipal land owner, but we need not and do not resolve that issue on this appeal because we conclude that the City’s acts are not an unequivocal manifestation of an intent to dedicate the parcels as permanent parkland. With respect to the element of the owner’s intent — the only matter contested in this appeal — if a landowner’s acts are ‘equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication.’”
The Court reasoned that “[h]ere, as the Appellate Division noted, several documents created prior to this litigation demonstrate that the City did not manifest an unequivocal intent to dedicate the contested parcels for use as public parks. The permit, memorandum of understanding and lease/license relating to Mercer Playground, LaGuardia Park and LaGuardia Corners Gardens, respectively, show that ‘any management of the parcels by the New York County Department of Parks and Recreation was understood to be temporary and provisional’. Thus, those documents’ restrictive terms show that, although the City permitted and encouraged some use of these three parcels for recreational and park-like purposes, it had no intention of permanently giving up control of the property. And, as the Appellate Division observed, the City’s ‘refus[al of] various requests to have the streets de-mapped and re-dedicated as parkland’ further indicates that the City has not unequivocally manifested an intent to dedicate the parcels as parkland.”
It concluded that just because a “portion of the public may have believed that these parcels are permanent parkland does not warrant a contrary result. Petitioners did not establish the City’s unequivocal intent to permanently dedicate this municipal property, as there was evidence that the City intended the uses to be temporary, with the parcels to remain under the City’s control for possible alternative future uses.”
NYU is free to build. Washington Square Park is nice.
MTA’s New Policy Creates a Limited Public Forum
In American Freedom Defense Initiative v. Metropolitan Transportation Authority, a federal District Court had previously granted a preliminary injunction prohibiting the Metropolitan Transportation Authority (“MTA”) from barring the American Freedom Defense Initiative’s controversial “Killing Jews” advertisement on city buses criticizing Hamas. That same Court has now recently held that as a result of a “new policy” of MTA, which now prohibits any advertisements that are “political in nature,” the MTA ceased the conduct previously identified as unconstitutional. Now, the advertising spaces on the MTA buses under this “new policy” are considered a “limited public forum” under First Amendment analysis.
The ad in question criticized Hamas, which the parties termed the “Killing Jews” ad. The ad includes a quote from “Hamas MTV”: “Killings Jews is Worship that draws us close to Allah.” Underneath the quote, the ad stated: “That’s His Jihad. What’s yours?” The American Freedom Defense Initiative (“AFDI”) had sought to run that ad on MTA buses.
In the Court’s previous decision, the Court held that “when the MTA excluded the ad based solely on the MTA’s policy prohibiting ads that imminently incite violence, the MTA violated the First Amendment” and the Court granted the AFDI’s motion for a preliminary injunction enjoining the MTA’s enforcement of its policy to prohibit the ad, and staying the effect of the injunction for 30 days to allow the MTA “to consider their options for appeal and methods for displaying the proposed advertisement.”
The Court further found that “[s]hortly thereafter, the MTA, in what it contends was an action it had been considering for some time, amended its regulations to prohibit the display of all political advertisements on MTA property (the “New Policy”).”
The New Policy prohibits any advertisement that falls into the following two categories:
- Promotes or opposes a political party, or promotes or opposes any ballot referendum or the election of any candidate or group of candidates for federal, state, judicial, or local governmental offices.
- Is political in nature, including but not limited to advertisements that either:
a. Are directed or addressed to the action, inaction, prospective action or policies of a governmental entity, except as permitted in [sections allowing governmental advertising and public service announcements]; or
b. Prominently or predominantly advocate or express a political message, including but not limited to an opinion, position, or viewpoint regarding disputed economic, political, moral, religious or social issues or related matters, or support for or opposition to disputed issues or causes.
Upon the MTA’s motion to dissolve the injunction based on the New Policy, the Court noted that the “MTA’s ban of all political ads is a dramatic change of circumstances from when the Court issued the preliminary injunction order. The Court’s grant of the preliminary injunction was based on the MTA’s enforcement of its standard prohibiting ads that ‘would imminently incite or provoke violence or other immediate breach of the peace,’ but the MTA’s exclusion of the plaintiffs’ ad is no longer based on that standard. The Court analyzed the defendants’ exclusion of the ad under strict scrutiny because the MTA’s advertising space constituted a ‘designated public forum under binding Second Circuit precedent. *** However, the status of MTA buses as a designated public forum was based largely on the MTA’s acceptance of political advertisements. Because the MTA no longer accepts any political advertisements, a different standard of review likely applies under the First Amendment.”
The AFDI argued that the New Policy remains unconstitutional because: “(1) the amendments were motivated by a desire to suppress the plaintiff’s viewpoint; (2) the Killing Jews ad does not qualify as “political in nature” under the New Policy; and (3) the New Policy is facially invalid.”
The Court rejected those arguments, recognizing that “the government may decide to close a designated public forum” at any time, and that if allowing political speech shows an intent to open the forum, “[d]isallowing political speech, and allowing commercial speech only, indicates that making money is the main goal.” The “Supreme Court and several courts of appeals have made clear that public authorities are not required to accept political advertisements, and when they exclude such ads, they create a limited public or nonpublic forum.”
Thus, the Court determined that the MTA’s exclusion of all political ads has converted its advertising space from a designated public forum to a limited public forum. Consequently, now, the restriction must only be viewpoint neutral and reasonable to be constitutional and valid.
The Court concluded: “Some may regret the MTA’s prohibition of political advertisements and the resulting loss of a public forum for heated political debate. But no law requires public transit agencies to accept political advertisements as a matter of course, and it is not for this Court to impose its own views on what type of forum the MTA should create. Just as the MTA created a designated public forum on its property by “invit[ing] . . . political speech” and the ensuing “clashes of opinion and controversy,” *** the MTA may rescind that invitation in order to reduce the political controversy amidst the MTA’s day-to-day operation of its public transit system. The plaintiffs may raise the question of whether the MTA’s actions were unconstitutional in an amended complaint. But at this stage, the plaintiffs’ original request for injunctive relief is moot, and the Court’s preliminary injunction order should be vacated. Accordingly, the defendants’ motion to dissolve the preliminary injunction order is granted.”
We picture Gildna Radner back, dressed as Emily Litella, meekly turning to the camera saying “Never mind.”