In re the Estate of Devita

OPINION OF THE COURT

C. Raymond Radigan, J.

The issue presented on this motion for partial summary judgment initiated by decedent’s two sons is whether future commissions of a life insurance agent made payable after his death to designated beneficiaries are testamentary substitutes against which his surviving spouse may exercise her statutory right of election (EPTL 5-1.1).

The decedent, an agent of Northwest Mutual Life Insurance Company, died intestate on January 25, 1984, survived by two sons, the respondents, and petitioner, his second wife and the administratrix of his estate. During his…