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Volume 2 - Opinions of Counsel SBEA No. 53

Opinions of Counsel index

Clergyman’s exemption (remarried widow) - Domestic Relations Law, §§ 6 and 7; Real Property Tax Law, § 460 - Veteran’s exemption (remarried widow) - Real Property Tax Law, § 458(1)(3):

Where the remarried widow of a veteran or a clergyman obtains an annulment of her voidable second marriage, the decree does not reinstate the widow’s right to claim the veteran’s or clergyman’s exemption. However, where such second marriage is declared to be void, the decree will reinstate the widow’s right to claim the exemption.

Our opinion has been requested concerning the clergyman’s exemption provided in section 460 of the Real Property Tax Law and the veteran’s exemption provided in section 458 of the Real Property Tax Law.

For example, assume a clergyman’s or veteran’s widow remarries. The question is whether the clergyman’s or veteran’s exemption may be restored if the widow obtains an annulment of the marriage to her second husband.

Section 460 of the Real Property Tax Law provides a partial exemption from taxation, to the extent of $1,500, on real property owned by a clergyman or his “unremarried widow”. When the widow remarries, she is no longer entitled to the exemption.

The problem raised is one which has arisen with respect to the “unremarried widow” language in the veteran’s exemption statute (Real Property Tax Law, § 458).

With respect to the annulment of a marriage, the Domestic Relations Law (§ 6) provides that under certain circumstances a second marriage is void from its inception and the prior marital status of a person entering into such a void marriage is not altered thereby. However, the Domestic Relations Law further provides that certain marriages are voidable and become void from the time the nullity is declared by a court (Domestic Relations Law, § 7).

Marriages which are deemed void by law are those, for example, which are entered into by a person whose spouse by a prior existing marriage is still living, or marriages entered into between certain relatives. The more frequent grounds for annulment come under the provisions with respect to voidable marriages.

It used to be that when marriages ended in an annulment, rather than a divorce, there was no provision that alimony could be awarded against the second spouse. To avoid the result of leaving the wife without any source of support whatsoever, the courts adopted a legal fiction that the marriage was void ab initio (from the beginning). This enabled the courts to hold that there was no remarriage, with the result that the husband of the first marriage had the burden of supporting the wife shifted back to him. Relying on this earlier attitude of the courts, former opinions stated that upon an annulment of a remarried widow of a veteran, such widow has the same marital status as she had before the subsequent marriage and must be regarded as the widow of the veteran and entitled to exemption (69 St. Dept. 591).

However, legislation subsequently was enacted to provide that a wife can receive support from the husband of the annulled marriage where “justice requires”, so that today there is no reason to revive the duty of a first husband to support the wife after the annulment of of her second marriage any more than there would be if the second marriage had been terminated by divorce (Gaines v. Jabobsen, 308 N.Y. 218, 124 N.E.2d 290).

We have concluded, with respect to veterans’ exemptions sought by veterans’ widows who have subsequent marriages annulled, that an annulment of a voidable marriage would not reinstate the widow’s right to claim the veteran’s exemption. However, an annulment of a void marriage would reinstate the widow’s right to claim such exemption.

Our conclusion with respect to the right of a widow of a clergyman obtaining an annulment of a subsequent marriage would be the same; that is, the exemption could not be reinstated if the marriage was voidable under the Domestic Relations Law, but could be if the marriage was void under this law.

October 29, 1970