Opinion: Overlooked Change in NY’s Estate Law is One Less Barrier to Re-Entry

“The restoration of voting rights in many states for those with felony histories is an encouraging step. In the same spirit, we must educate New York’s families of their right to choose who will protect the generational wealth they have worked so hard to earn and leave to their loved ones.”

As a judicial candidate for Manhattan’s Surrogate’s Court, also known as Probate Court, I’ve had the privilege of speaking to thousands of New Yorkers while petitioning to get on the June 28 primary ballot. Typically we would ask, “Are you a registered Democrat who votes in New York,” and occasionally a person would apologetically respond, “I can’t vote, I’m a felon.”

Many people are still unaware that this long-time bar to political participation has been lifted. On May 4, 2021, former Gov. Andrew Cuomo signed into law an act that allows people with felony convictions who are not incarcerated to register and vote.

Another important change that should be brought to the public’s attention is that effective Oct. 22, 2021, “felon” was removed from the list of criteria that disqualified individuals from serving as fiduciaries under the New York’s Surrogate Court Procedure Act. Rather than an across-the-board prohibition, this legislation permits people with felony convictions in their history to serve, while still giving the court the flexibility to disqualify individuals in certain cases where a prior conviction was associated with fraud, embezzlement, or could be detrimental to the welfare of the estate.

The intent of this legislation was to allow those who have completed their sentence to serve in the role of fiduciary when handling a family member’s estate, particularly where the decedent specifically requested that that person serve in that role. Generally, Surrogate’s Court is deferential to a testator’s wishes and appoints the party they named. The fact that prior to this legislation people with a felony conviction were unable to manage their own parents’ estates was contrary to this deference and potentially legally burdensome.

The bright-line rule mandating ineligibility not only voided the decedent’s choice, but could also result in the appointment of the Public Administrator, despite the existence of immediate family willing to take on this responsibility. Moreover, appointing the Public Administrator results in less assets for distribution among family because the Public Administrator’s costs and fees are paid from the estate.

These two legislative changes—who can register to vote and participate in the political process and who can serve as the fiduciary of an estate—reflect New York’s growing need to remove barriers to re-entry. This trend recognizes that persons who have served their sentence are redeemed in the eyes of the law and may return with full rights and responsibilities.

In my law school experience volunteering at the Lorton Reformatory, and later as a volunteer with the National Lawyers Guild’s prison mail project, I saw first-hand the importance of connecting with an often-overlooked population. What better means to foster re-entry than to allow all persons identified by the decedent to take care of their family’s financial and emotional needs at such a critical time?

While today’s debate around bail, sentencing and other topics pertaining to criminal justice reform is on the minds of many, we must not lose sight of the importance of facilitating re-entry for a significant population.

The restoration of voting rights in many states for those with felony histories is an encouraging step. In the same spirit, we must educate New York’s families of their right to choose who will protect the generational wealth they have worked so hard to earn and leave to their loved ones.

Regardless of your political persuasion or your model for redemption, we can all agree that in terms of voting rights and fiscal responsibility, we should be encouraging, not excluding, full societal participation.

Elba Rose Galvan, a referee in Kings County Surrogate’s Court, is a candidate for Surrogate’s Court judge in New York County.