A surviving spouse has a right of election under the will of the decedent unless it is satisfactorily established that the spouse abandoned the decedent and that the abandonment continued until the time of death (EPTL 5-1.2 [a] [5]). To challenge a spouse's right of election, something more than mere departure from the marital abode and living separate and apart is required. The one seeking to impose the forfeiture must demonstrate that the abandonment was unjustified and...
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