In re the Estate of Gardner

— Order, Surrogate’s Court, New York County (Renee R. Roth, S.), entered February 6, 1991, which, inter alia, directed an accounting, unanimously affirmed, with costs.

Petitioner’s right to an accounting is dependent upon recognition of Catherine Gardner as "surviving spouse” of decedent. As it has been undisputed that they were married, the burden was upon respondent to establish a disqualification under the sections relied upon by her, EPTL 5-1.2 (a) (5) and (6) (Matter of Maiden, 284 NY 429; Matter of Riefberg, 58 NY2d 134). While it is clear that Catherine Gardner departed the marital…