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Volume 4 - Opinions of Counsel SBEA No. 78

Opinions of Counsel index

Veterans’ exemption (member of exempt class) (widower of veteran) - Real Property Tax Law, § 458:

The unremarried widower of a female veteran is not entitled to receive an exemption pursuant to section 458.

We have received an inquiry requesting our opinion concerning the amount of veteran’s exemption from real property taxation to which a veteran is entitled pursuant to section 458 of the Real Property Tax Law. Both he and his late wife were veterans and jointly purchased real property, using eligible funds to which each of them was entitled. They accordingly received a combined veterans’ exemption, but following his wife’s death in 1973, the exemption was reduced on the next assessment roll in an amount equal to his wife’s share of the total exemption which they had previously received. The question is whether the veteran may continue to claim his late wife’s eligible funds for purposes of the exemption.

We have previously indicated that where a husband and wife are both veterans, and each has invested his or her eligible funds into the purchase of their real property, the total exemption may exceed $5,000 (2 Op.Counsel SBEA No. 106). However, we have also indicated that where a female veteran, entitled to eligible funds, is also the unremarried widow of a male veteran, who was also entitled to eligible funds, the surviving veteran is limited to a $5,000 total exemption (3 Op.Counsel SBEA No. 43).

Subdivision 1 of section 458 sets forth which class of persons is entitled to the veterans’ exemption. This subdivision provides that in order to receive the exemption, the real property must be “. . owned by the person who rendered such services, or by his wife or unremarried widow, or dependent father or mother, or by his children under twenty-one years of age . . .”.  Section 22 of the General Construction Law provides that in New York’s laws, words of the masculine gender include the feminine; however, it does not provide that words of the feminine gender include the masculine. Accordingly, it is our opinion that the words “wife or unremarried widow” cannot be construed to include a “husband or unremarried widower”. It seems clear that the Legislature intended to exclude the husband or unremarried widower of a female veteran from the class of persons eligible to receive the veterans’ exemption.

In an analogous case, the United States Supreme Court recently upheld a Florida statute which gives widows a $500 exemption from property taxation but does not provide such an exemption for widowers (Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189). Thus, the highest court in the United States has held that some statutory distinctions according to sex may be valid. What, if any, effect the proposed Equal Rights Amendment to the United States Constitution would have on such statutes is conjectural.

January 15, 1975

NOTE: This Opinion is inoperative. It was superseded by L.1976, c.63, effective 9/1/1976.