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In re Ranftle

Supreme Court of New York, First Department

July 2, 2013

In re H. Kenneth Ranftle, etc., File No. Deceased. Ronald J. Ranftle, Petitioner-Appellant, and J. Craig Leiby. Respondent-Respondent.

Greenberg & Wilner, LLP, New York (Harvey L. Greenberg of counsel), for appellant.

Weiss, Buell & Bell, New York (Erica Bell of counsel), for respondent.

Sweeny, J.P., Saxe, Renwick, Freedman, JJ.

Order, Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about September 14, 2011, which dismissed the petition for, inter alia, leave to submit objections to the probate of the will, affirmed.

Before us is the second proceeding challenging the ongoing probate of the last will of decedent H. Kenneth Ranftle. In December 2008, the Surrogate issued a decree granting probate upon the petition of respondent J. Craig Leiby, who is Ranftle's surviving husband and the appointed executor of the will (Matter of Ranftle, NYLJ, Feb. 3, 2009 at 27, col 1 [Sur Ct, NY County 2009]).

In June 2009, one of Ranftle's brothers petitioned for vacatur of the probate decree, arguing that recognizing Ranftle's and Craig's same-sex marriage in Canada would violate New York's public policy. The Surrogate denied the petition, finding the public policy argument to be "patently without merit, " and we unanimously affirmed that decision (Matter of Ranftle, 81 A.D.3d 566, 567 [1st Dept 2011]).

In December 2009, another of Ranftle's brothers filed the petition now before us, claiming that the Surrogate's Court lacks jurisdiction over the estate's personal property because Ranftle was domiciled in Florida when he died. In opposition, Leiby contends that, at least six months before his death, Ranftle changed his domicile from Florida to New York.

The Surrogate's Court directed a hearing to determine the question of domicile, after which the Surrogate, in a September 2011 post-hearing decision, found that Leiby had proved by clear and convincing evidence that Ranftle had abandoned his Florida domicile and reestablished domicile in New York. For the reasons set forth below, we affirm.

The following facts were either uncontroverted or were adduced at the April 2011 hearing: Ranftle was born in 1943 in New York City and lived there for most of his life. In 1990, Ranftle and Leiby began living together as domestic partners and remained a committed couple until Ranftle's death. Throughout their relationship, Leiby was domiciled in New York. In 2003, however, Ranftle, who owned a house in Fort Lauderdale, Florida, changed his domicile to Florida because of certain tax benefits. To qualify as a Florida resident for tax purposes, Ranftle kept diaries to show he spent 183 days, or more than one half a year, in the state for each year [*2]from 2003 through 2007.

From the time Ranftle established Florida domicile in 2003 until he moved back to New York in 2008, Ranftle regularly commuted from Florida to be with Leiby. During that period, Ranftle retained his concert and theater subscriptions and made charitable contributions to New York City institutions. Ranftle's financial advisor and his doctors and other health care professionals were also based in New York City.

In March 2008, Ranftle was diagnosed in New York with stage IV adenocarcinoma of the lung and a metastatic tumor of the brain. He never returned to Florida after his diagnosis, but instead lived until his death with Leiby in their jointly-owned New York City condominium.

On May 14, 2008, New York State Governor David Paterson issued an Executive Directive requiring the State's agencies to recognize same-sex marriages that had been validly contracted in other jurisdictions [1]. Leiby testified that, when Ranftle learned about the Executive Directive on the same day that it was issued, he immediately proposed to Leiby, who immediately accepted.

On June 7, 2008, Ranftle and Leiby married in Montreal, Canada, where they owned an apartment. Canada had extended the legal rights of marriage to same-sex couples in 2005. In accordance with Canadian law, the couple executed a declaration of marriage in which both stated that their "domicile after the marriage" would be their New York City apartment.

After the marriage, Ranftle took further affirmative steps to establish residence in New York. These included applying for Social Security from his New York address when he turned 65 in July 2008, shipping his car from Florida to New York, and changing his address of record for his investment accounts and tax documents from that of the Florida house to that of Ranftle's and Leiby's New York apartment. In addition, Ranftle's accountant testified that he had retained her to prepare his tax ...

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