“Dead Man’s Statute” gets new life

The New York Law Journal reports that Kings County Surrogate John Ingram barred a caregiver turned wife of a man with dementia from testifying about whether she may exercise her spousal right of election in the matter of her late husband’s estate. Irving Berk, who died in 2006, left a five million dollar estate to his children and grandchildren.

Known as the Dead Man’s Statute, the law states that in New York, the surviving spouse is entitle to collect certain assets, even if the will bequeaths them to someone else. The surviving spouse is entitled to one-third of the estate if it is valued at over $50,000. That includes joint bank accounts and other assets. The law was designed to prevent perjury by prohibiting a witness who is an interested party from testifying about their “communications” with a deceased person

Mr. Berk’s caregiver, Hua Wang, secretly married him and wanted to testify about her relationship with her deceased husband. Ingram ruled that since she had a financial interest in the outcome of her testimony, she would be barred her from giving what would be a one-sided testimony. The issue was whether she forfeited her ability to exercise her right of election since she had an interest in the outcome of the case.