## Facts

- Robert V. Clark, Jr. died in 1964 domiciled in Virginia; his widow resided in Virginia.
- Clark’s estate exceeded $23 million; most consisted of securities held at a New York bank, with additional real and tangible personal property in Virginia.
- Clark’s 1962 will stated that it and its trusts would be “construed, regulated and determined” by New York law.
- The will gave the widow the Virginia residence and its contents and created a preresiduary marital deduction trust providing her life income and a general testamentary power of appointment over principal.
- The residuary estate (after estate taxes) was placed in trust for Clark’s mother.
- The trust provisions would satisfy New York’s elective-share statute then in effect, but Virginia law gave the widow an unconditional right to renounce the will and take her intestate share outright (one-half in the absence of issue).
- The widow timely elected under Virginia law.
- New York executors administered the New York securities; Virginia executors administered the Virginia property.
- The New York executors sought a New York court determination that the widow had no election right against the New York assets; the trial court agreed, but an intermediate appellate court reversed.

## Issues

1. Whether a surviving spouse’s right to elect against a will is governed by the law of the marital domicile when the decedent dies domiciled there but owns substantial personal property administered in another state.
2. Whether a testator may use a will’s choice-of-law clause selecting another state’s law to reduce or eliminate the spouse’s more favorable elective-share rights under the domicile’s law.

## Decision

- The court affirmed the intermediate appellate court.
- The widow’s right of election was governed by Virginia law, the spouses’ domicile at the decedent’s death.
- The will’s New York choice-of-law clause did not bar the widow from renouncing the will under Virginia law as to personal property administered in New York.
- New York administration and situs of the securities did not justify applying New York’s less favorable spousal protection to limit the widow’s domiciliary election rights.

## Legal Principles

- A surviving spouse’s elective-share/renunciation right is determined by the law of the spouses’ marital domicile at the decedent’s death.
- A testamentary choice-of-law provision may govern construction or administration of testamentary dispositions but cannot unilaterally displace mandatory spousal protections created by the domicile’s law.
- In a multistate estate, locating or administering personal property in another jurisdiction does not permit curtailment of the spouse’s domiciliary elective-share rights.

## Conclusion

The court held that Virginia law, as the marital domicile, controlled the widow’s election rights and that the decedent’s selection of New York law in his will could not defeat the widow’s Virginia statutory right to renounce the will and take her intestate share, even against securities administered in New York.


In re Estate of Clark, 21 N.Y.2d 478, 288 N.Y.S.2d 993, 236 N.E.2d 152 (N.Y. 1968)