In Rubenstein v. Mueller (19 NY2d 228, 225 NE2d 540, 278 NYS2d 845 , the court cited with approval lower court cases holding that the former wife's right to specific performance of a provision in a separation agreement obligating the decedent to make a will leaving property to the former spouse or children "must give way" to the spouse's elective share.
Nevertheless, the court concluded that those cases were not controlling where the decedent had received his first wife's estate under the terms of a joint will and then executed a new will under which his second wife, instead of the beneficiaries designated in the joint will, was the sole beneficiary of his estate.
Specifically, and notwithstanding a vigorous dissent, the majority held that the distribution under the joint will prevails over the surviving spouse's elective share.
The majority reasoned that "different equitable considerations" apply to property dispositions under joint wills than to a separation agreement provision requiring that, in the future, a legacy be made in a will, because such a provision "is usually but an incident to the over-all settlement" with respect to property and support, while a joint will "represents the sole attempt . . . to effect a distribution of their collective property" and creates an "irrevocable obligation concerning the collective property" (id. at 234-235).
Thus, Rubenstein made new law by holding that, notwithstanding that a surviving spouse's elective share prevails over a former's spouse's right under a separation agreement to receive a legacy under a will, the spouse's right to an elective share against property passing after the decedent's death would not be superior to that of a party who has a right to the property pursuant to the terms of a joint will.