The Ministers and Missionaries Benefit Board v. Leon Snow v. The Estate of Clark Flesher

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 131
The Ministers and Missionaries
Benefit Board,
          Interpleader Plaintiff,
        v.
Leon Snow et al.,
            Appellants,
        v.
The Estate of Clark Flesher, et
al.,
            Respondents.



             Jesse T. Wilkins, for appellants.
             Brian Rosner, for respondents.




STEIN, J.:
             In IRB-Brasil Resseguros, S.A. v Inepar Invs., S.A. (

20 NY3d 310

 [2012], cert denied ___ US ___, 

133 S Ct 2396

 [2013]),
this Court held that, where parties include a New York
choice-of-law clause in a contract, such a provision demonstrates
the parties' intent that courts not conduct a conflict-of-laws

                                 - 1 -
                                 - 2 -                         No. 131

analysis (see id. at 312).     We now extend that holding to
contracts that do not fall under General Obligations Law § 5-
1401, and clarify that this rule obviates the application of both
common-law conflict-of-laws principles and statutory
choice-of-law directives, unless the parties expressly indicate
otherwise.
                                  I.
             Plaintiff Ministers and Missionaries Benefit Board
(MMBB) is a New York not-for-profit corporation, based in New
York County, that administers a retirement plan and a death
benefit plan for certain ministers and missionaries.     Decedent
Clark Flesher was a minister enrolled in both plans.     He named
his then-wife, defendant LeAnn Snow, as his primary beneficiary
and her father, defendant Leon Snow, as the contingent
beneficiary.    Both plans state that they "shall be governed by
and construed in accordance with the laws of the State of New
York."
             Flesher and LeAnn Snow divorced in 2008.   Flesher moved
to Colorado in 2010 and died there in 2011.    A Colorado court has
apparently admitted his will to probate, naming his sister,
defendant Michele Arnoldy, as personal representative of the
estate.   Despite the divorce, Flesher never changed his
beneficiary designations under the MMBB plans.    Because MMBB was
unsure to whom the plan benefits should be paid after Flesher's
death, it commenced a federal interpleader action against


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Flesher's Estate, Arnoldy (individually and as personal
representative of the Estate), LeAnn Snow and Leon Snow.1
           The United States District Court for the Southern
District of New York (Griesa, J.) allowed MMBB to post a bond and
be released from the case, with the obligation to pay the
benefits as the court directs.    Arnoldy and the Estate moved for
summary judgment, and the Snows cross-moved for summary judgment.
The District Court (Forrest, J.) denied the Snows' motion,
granted the motion of Arnoldy and the Estate and directed MMBB to
pay the disputed funds to Arnoldy, as representative of the
Estate.   In making that determination, the District Court
reasoned that: (1) the parties agreed that the relevant
choice-of-law rules are the rules of New York, as the forum
state; (2) the disputed funds constitute personal property; (3)
under EPTL 3-5.1 (b) (2), revocation of a disposition of personal
property, where such property is not disposed of by a will, is
determined by the law of the state where the decedent was
domiciled at the time of death; (4) Flesher was domiciled in
Colorado at the time of his death, so Colorado law applied; and
(5) Colorado's revocation law terminated any claims to the plans
by both Snows (i.e., the former spouse and her relatives) when



     1
       The complaint was filed in federal court based on
diversity of the parties. MMBB is a New York corporation, the
Estate is considered a resident of Colorado, Arnoldy resides in
North Carolina, LeAnn Snow resides in California and Leon Snow
resides in Minnesota.

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Flesher and LeAnn Snow were divorced.
           On the Snows' appeal, the Second Circuit Court of
Appeals determined that there were important and unanswered
questions of New York law and, therefore, certified two questions
to this Court before deciding the appeal (

780 F3d 150

 [2d Cir
2015]).   Those questions are:
           "(1) Whether a governing-law provision that
           states that the contract will be governed by
           and construed in accordance with the laws of
           the State of New York, in a contract not
           consummated pursuant to New York General
           Obligations Law section 5-1401, requires the
           application of New York Estates, Powers &
           Trusts Law section 3-5.1 (b) (2), a New York
           statute that may, in turn, require
           application of the law of another state?
           (2) If so, whether a person's entitlement to
           proceeds under a death benefit or retirement
           plan, paid upon the death of the person
           making the designation, constitutes 'personal
           property . . . not disposed of by will'
           within the meaning of New York Estates,
           Powers & Trusts Law section 3-5.1 (b) (2)?"
           (

780 F3d at 155

).

           This Court accepted the certified questions (

25 NY3d 935

 [2015]).   We now answer the first question in the negative
and, accordingly, have no occasion to reach the second question.
                                  II.
           The retirement and death benefit plans here each state
that they "shall be governed by and construed in accordance with
the laws of the State of New York."      The first certified question
essentially asks us how to interpret the phrase "laws of . . .


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                               - 5 -                         No. 131

New York" in those contractual provisions.
           We begin with the basic premises that courts will
generally enforce choice-of-law clauses and that contracts should
be interpreted so as to effectuate the parties' intent (see
Welsbach Elec. Corp. v MasTec N. Am., Inc., 

7 NY3d 624, 629

[2006]).   In a case based on New York law, the United States
Supreme Court held that a choice-of-law provision in a contract
"may reasonably be read as merely a substitute for the
conflict-of-laws analysis that otherwise would determine what law
to apply to disputes arising out of the contractual relationship"
(Mastrobuono v Shearson Lehman Hutton, Inc., 

514 US 52, 59

[1995]).   Thus, the parties here agree that, pursuant to the
choice-of-law provisions in the MMBB plans, the contracts will be
governed only by New York's substantive law, not by New York's
common-law conflict-of-laws rules.
           Nevertheless, we must decide whether the New York law
to be applied includes a New York statutory choice-of-law
directive, such as EPTL 3-5.1 (b) (2).   That statute provides
that "[t]he intrinsic validity, effect, revocation or alteration
of a testamentary disposition of personal property, and the
manner in which such property devolves when not disposed of by
will, are determined by the law of the jurisdiction in which the
decedent was domiciled at death" (EPTL 3-5.1 [b] [2]).2   The


     2
       The District Court determined that Flesher was a Colorado
domiciliary. While the Snows apparently continue to dispute

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                               - 6 -                         No. 131

question is whether section 3-5.1 (b) (2) should be characterized
as part of New York's substantive or "local law," which the
contracting parties intended to apply, or whether it is simply a
conflict-of-laws rule, which they did not intend to apply.    The
answer to this question is crucial here because the recipients of
the MMBB plan benefits will be different depending on whether
courts apply the law of New York or the law of Colorado.
          As for indisputably substantive New York law, EPTL
5-1.4 (a) states that,
          "[e]xcept as provided by the express terms of
          a governing instrument, a divorce . . .
          revokes any revocable (1) disposition or
          appointment of property made by a divorced
          individual to, or for the benefit of, the
          former spouse, including, but not limited to,
          a disposition or appointment by will, . . .
          by beneficiary designation in a life
          insurance policy or (to the extent permitted
          by law) in a pension or retirement benefits
          plan."

The plans here fall under the definition of governing instruments
(see EPTL 5-1.4 [f] [5]).   Thus, under New York's purely
substantive law, Flesher's designation of LeAnn Snow as a
beneficiary of the plans was revoked upon their divorce in 2008,
while the designation of Leon Snow as contingent beneficiary
remained in effect (see Matter of Lewis, 

25 NY3d 456

, 459




Flesher's domicile, that issue is not before us given the
procedural posture of this case. Thus, for purposes of this
appeal, we assume that Flesher was domiciled in Colorado at the
time of his death.

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                               - 7 -                         No. 131

[2015]).
           In contrast, the relevant Colorado statute provides
that a divorce acts to revoke any dispositions or appointments by
the divorced person to his or her former spouse and to relatives
of the former spouse (see Colo Rev Stat § 15-11-804 [2]).
Colorado courts have confirmed that the term "governing
instruments" in that state's revocation statute includes
designations of beneficiaries in life insurance policies (see
Matter of Johnson, 

304 P3d 614, 616

 [Colo Ct of Appeals 2012],
cert denied 

2013 WL 3321113

 [Colo July 1, 2013]).   Because Leon
Snow, as the father of LeAnn Snow, falls within the definition of
a "[r]elative of the divorced individual's former spouse" in
relation to Flesher (Colo Rev Stat § 15-11-804 [1] [e]), under
Colorado law, the divorce revoked the designations of both LeAnn
Snow and Leon Snow as beneficiaries of the MMBB plans.
           The Second Circuit concluded that this case presented a
close question based, in part, on this Court's recent decision in
IRB-Brasil Resseguros, S.A. (

20 NY3d 310

).   There, we decided
that the need for a conflict-of-laws analysis is obviated by a
contract, made pursuant to General Obligations Law § 5-1401, that
contains a New York choice-of-law clause (see id. at 312).
Section 5-1401 embodies the Legislature's desire to encourage
parties to choose the New York justice system to govern their
contractual disputes (see id. at 314-315).   In IRB, we concluded
that, where a contract met the requirements of General


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                               - 8 -                         No. 131

Obligations Law § 5-1401 -- including that the transaction
exceeded $250,000 and the parties designated New York law as
controlling -- "New York substantive law must govern" and
"[e]xpress contract language excluding New York's
conflict-of-laws principles is not necessary" (id. at 315).      We
reasoned that, "[t]o find . . . that courts must engage in a
conflict-of-laws analysis despite the parties' plainly expressed
desire to apply New York law would frustrate the Legislature's
purpose of encouraging a predictable contractual choice of New
York commercial law and, crucially, of eliminating uncertainty
regarding the governing law" (id. at 316).   Significantly, this
Court noted that the Restatement (Second) of Conflict of Laws §
187 (3) supports the same result (see IRB-Brasil Resseguros,
S.A., 

20 NY3d at 316

).   Section 187 (3) provides that, in the
absence of an expressed contrary intention, references to the law
of a state chosen by the parties means the "local law" of that
state (see IRB-Brasil Resseguros, S.A., 

20 NY3d at 316

), which is
defined elsewhere in the Restatement as the chosen state's "body
of standards, principles and rules, exclusive of its rules of
Conflict of Laws, which the courts of that state apply in the
decision of controversies brought before them" (Restatement
[Second] of Conflict of Laws § 4 [1] [emphasis added]).3
          Referring to New York's overarching principle of

     3
       A state's standards, principles and rules would be treated
equally under that definition, regardless of whether they were
expressed in the common law or in statutes.

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                              - 9 -                         No. 131

providing certainty and finality to contracting parties, the
Court in IRB concluded by saying that
          "[i]t strains credulity that the parties
          would have chosen to leave the question of
          the applicable substantive law unanswered and
          would have desired a court to engage in a
          complicated conflict-of-laws analysis,
          delaying resolution of any dispute and
          increasing litigation expenses. We therefore
          conclude that parties are not required to
          expressly exclude New York conflict-of-laws
          principles in their choice-of-law provision
          in order to avail themselves of New York
          substantive law. Indeed, in the event
          parties wish to employ New York's
          conflict-of-laws principles to determine the
          applicable substantive law, they can
          expressly so designate in their contract"
          (IRB-Brasil Resseguros, S.A., 

20 NY3d at 316

).

          Although IRB concerned only common-law conflict-of-laws
principles, whereas EPTL 3-5.1 (b) (2) is a statutory choice-of-
law directive, the latter is merely a codification of a long-
standing common-law conflict-of-laws principle, eventually placed
within the EPTL because it corresponds to that general area of
law (see Matter of Gifford, 

279 NY 470, 474-475

 [1939];
Chamberlain v Chamberlain, 

43 NY 424, 433

 [1871]; Parsons v
Lyman, 

20 NY 103, 112

 [1859]; Holmes v Remsen, 4 Johns Ch 460,
470 [NY Ch Ct 1820]; see also EPTL 3-5.1 [b], derived from former
Decedent Estate Law § 47, derived from former Code of Civil
Procedure § 2694; L 1966, ch 952).    While the EPTL may have
initially been created, at least in part, to revise the substance
of New York estates law, the placement of section 3-5.1 (b) (2)


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                                  - 10 -                       No. 131

within the EPTL primarily served another of its creators'
purposes, which was to organize the statutes addressing that area
of the law and consolidate them into one source (see Governor's
Mem of Approval, Bill Jacket, L 1966, ch 952 at 91 [while noting
that the bill enacting the EPTL and SCPA made numerous changes in
substantive law, one of the "chief virtues" was the consolidation
of statutes pertaining to estates law that were previously
scattered throughout numerous other areas of law]; Mem of Temp
Commn on Law of Estates, 1966 NY Legis Ann at 121 [the Commission
made an effort to keep substantive changes to a minimum, worked
to simplify the form of the statutes, and perhaps the most
notable contribution the new EPTL makes is its format, compiling
estates law in one source]).      Although codification may be an
indication that the Legislature attaches some importance to the
rule, EPTL 3-5.1 (b) (2) nevertheless remains, in its essence, a
conflict-of-laws rule, rather than a statement of substantive
law.       The fact that the Legislature may have made a substantive
decision to codify the rule, or had a substantive public policy
reason for placing the former common-law rule within a statute,
does not somehow elevate or transform this conflict-of-laws
directive into a statement of substantive law.4


       4
       Thus, the fact that EPTL 3-5.1 (b) (2) is contained within
EPTL article 3, which is entitled "[s]ubstantive [l]aw of
[w]ills," is not determinative of its character. Due to the
practicality of attempting to organize all of the statutory
rules, by putting provisions that relate to one another together
or in close proximity, portions of statutes may be placed in an

                                  - 10 -
                              - 11 -                        No. 131

          To be sure, our decision in IRB does not preclude a
different result here.   However, our conclusion in that case --
that when parties include a choice-of-law provision in a
contract, they intend application of only that state's
"substantive law" (IRB-Brasil Resseguros, S.A., 

20 NY3d at 315

) -
- is equally applicable to the contracts now before us.    If New
York's common-law conflict-of-laws principles should not apply
when the parties have chosen New York law to govern their dispute
-- a point on which all parties to this appeal agree -- and EPTL
3-5.1 (b) (2) simply represents a common-law conflicts principle
that has been codified into statute, that provision should not be
considered in resolving this dispute.5


article or section whose title -- while correctly applying to
that article or section in general -- does not accurately reflect
every individual provision therein. Nevertheless, a statutory
provision that is, by its nature, procedural cannot be converted
into substantive law by virtue of the title of the overall
article including that particular provision (see Squadrito v
Griebsch, 

1 NY2d 471, 475

 [1956] [text of statute takes
precedence over title, which cannot alter or limit the language
in the body of a statute itself]; McKinney's Cons Law of NY,
Statutes § 123 [a]).
     5
       The Restatement (Second) of Conflict of Laws § 6 (1)
states that "[a] court, subject to constitutional restrictions,
will follow a statutory directive of its own state on choice of
law." While that section articulates a general rule -- a fairly
basic and uncontroversial proposition -- that courts must follow
statutory directives, contracting parties are generally free to
include provisions altering the application of certain state laws
to disputes concerning their contract (see Welsbach Elec. Corp.,

7 NY3d at 629

). Thus, that section of the Restatement does not
suggest that courts should apply a statutory choice-of-law
directive when interpreting a contract containing a choice-of-law
provision.

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                              - 12 -                         No. 131

           Stated differently, New York courts should not engage
in any conflicts analysis where the parties include a
choice-of-law provision in their contract, even if the contract
is one that does not fall within General Obligations Law §
5-1401.   That provision applies only to contracts for
transactions involving an aggregate of over $250,000, but it
specifically states that "[n]othing contained [herein] shall be
construed to limit or deny the enforcement of any provision
respecting choice of law in any other contract" (General
Obligations Law § 5-1401 [2]).6   While IRB does not entirely
answer the current question because that case does not address
the applicability of a statutory choice-of-law directive, logic
dictates that, by including a choice-of-law provision in their
contracts, the parties intended for only New York substantive law
to apply (see IRB-Brasil Resseguros, S.A., 

20 NY3d at 315-316

;
see also Mastrobuono, 

514 US at 63-64

 [harmonizing choice-of-law
provision and arbitration provision by reading the phrase "laws
of the State of New York" to include New York substantive
principles that courts would apply, but not include special rules
limiting arbitrators' authority]).     A contrary interpretation is


     6
       It is unclear from the current record whether the amount
due under either individual MMBB plan is more than $250,000.
However, the combined benefits due under the two plans now exceed
that amount. While the parties appear to acknowledge that
General Obligations Law § 5-1401 does not apply to the MMBB
plans, our decision here ensures that all contractual choice-of-
law provisions are interpreted under the same rules, regardless
of the amount at issue.

                              - 12 -
                              - 13 -                          No. 131

conceivable.   However, we should apply the most reasonable
interpretation of the contract language that effectuates the
parties' intended and expressed choice of law (see Welsbach Elec.
Corp., 

7 NY3d at 629

).   To do otherwise -- by applying New York's
statutory conflict-of-laws principles, even if doing so results
in the application of the substantive law of another state --
would contravene the primary purpose of including a choice-of-law
provision in a contract -- namely, to avoid a conflict-of-laws
analysis and its associated time and expense.7   Such an
interpretation would also interfere with, and ignore, the
parties' intent, contrary to the basic tenets of contract
interpretation.
           Moreover, allowing the application of a statutory
choice-of-law directive would mean that the contracts here could
be interpreted differently for each plan member, depending on
where the member was domiciled at the time of his or her death.
It seems unlikely that MMBB intended to have its contracts -- a
retirement plan and a death benefit plan -- interpreted in many
different ways based on the whim and movements of its plan
members.   The intention to provide for predictable results



     7
       The dissent takes issue with our conclusion regarding the
ability of parties to waive application of EPTL 3-5.1 (b) (2)
(see Dissent at 22). To be clear, our analysis is not primarily
based on that statute's origins in the common law. Further, our
holding narrowly addresses waiver based only on the nature of the
statute -- namely, a choice-of-law directive -- as a natural
extension of our holding in IRB.

                              - 13 -
                             - 14 -                        No. 131

regarding the distribution of funds to beneficiaries is
particularly apt for these plans, which are issued to ministers
and missionaries, who presumably are more likely than the general
population to move often and who may live in all parts of the
world, not just in different states.   Contractually planning for
the application of New York substantive law regarding benefit
distribution would provide stability, certainty, predictability
and convenience (see Restatement [Second] of Conflict of Laws §
187, Comment h), so that MMBB could easily determine who should
receive plan benefits.8
          Conversely, if application of the statutory choice-of-
law provision -- EPTL 3-5.1 (b) (2) -- was required, it would be
necessary for MMBB to keep abreast of the laws of all other
states and nations to ensure that it paid the proper
beneficiaries, which would invite the very uncertainties that
MMBB and the plan members presumably intended to avoid.   While it


     8
       There is no reason to assume that the parties would expect
that death benefits under the MMBB plans would be subject to the
laws of the decedent's domicile state simply because a majority
of states follow that rule. To the contrary, the parties here
reasonably could have believed that courts would apply the
substantive law of New York -- without resorting to any conflict-
of-laws rules or the laws of any other state -- based on the
choice-of-law provisions in the contracts at issue. It was not
necessary for the parties to explicitly waive the application of
the domicile-based rule, or EPTL 3-5.1 (b) (2) itself, in the
contracts. As we held in IRB, parties are not required to
expressly exclude New York common-law conflict-of-laws principles
in a contractual choice-of-law provision (see IRB-Brasil
Resseguros, S.A., 

20 NY3d at 316

). That rule similarly applies
to New York statutory choice-of-law directives.

                             - 14 -
                                - 15 -                        No. 131

might appear to be a simple task to determine a decedent's
domicile at the time of his or her death, that will not always be
the case.   Therefore, we hold that, when parties include a
choice-of-law provision in a contract, they intend that the law
of the chosen state -- and no other state -- will be applied.     In
such a situation, the chosen state's substantive law -- but not
its common-law conflict-of-laws principles or statutory
choice-of-law directives -- is to be applied, unless the parties
expressly indicate otherwise.
            Accordingly, the first certified question should be
answered in the negative and the second certified question not
answered as academic.




                                - 15 -
The Ministers and Missionaries Benefit Board v Leon Snow et al.
v The Estate of Clark Flesher et al.

No. 131




ABDUS-SALAAM, J. (dissenting):
          When is a duly enacted law of the State of New York not
part of "the laws of the State of New York"?   One would think
that the answer is never.   But the majority disagrees.   In the
majority's estimation, a law passed by New York elected

                                 - 1 -
                               - 2 -                         No. 131

representatives is not part of the "laws of the State of New
York" if those legislators modeled the statute on a common-law
rule specifying a particular jurisdiction's laws as controlling
the disposition of a person's property upon death.    Thus, the
majority holds that, where a governing-law clause in a death or
retirement benefit plan declares that the "laws of the State of
New York" are controlling, the clause waives the application of
Estates Powers & Trusts Law ("EPTL") § 3-5.1 (b) (2), which is a
properly enacted law of New York dealing with property
dispositions upon death (see majority op. at 2).     In light of
that holding, the majority answers in the negative the first
question of law certified to us by the United States Court of
Appeals for the Second Circuit, and it declines to answer the
second question on the ground that no answer is necessary to the
resolution of this appeal (see majority op. at 4, 15).
           In reaching the erroneous conclusion that the decedent
Reverend Clark Flesher and the Ministers and Missionaries Benefit
Board ("MMBB") implicitly waived the provisions of EPTL § 3-5.1
(b) (2) via the governing-law clauses of their death benefit and
retirement plans, the majority relies on our decision in
IRB-Brasil Resseguros, S.A. v Inepar Invs., S.A. (

20 NY3d 310

[2012]).   But, a close examination of that decision reveals that
the majority is incorrect, for IRB-Brasil Resseguros, S.A.
identifies New York substantive law, such as EPTL § 3-5.1 (b)
(2), as exactly the sort of New York law invoked by a governing-


                               - 2 -
                              - 3 -                          No. 131

law clause of the kind at issue here.   Consequently, I would
answer the first certified question in the affirmative.
Furthermore, because the plain language of EPTL § 3-5.1 (b) (2)
clearly demonstrates that the benefit plans at issue here are
covered by that statute, the second certified question should be
answered in the affirmative as well.    Accordingly, I respectfully
dissent from the majority's decision to answer the first
certified question in the negative and to decline to answer the
second certified question.
                               I.
                                A
          The first certified question asks "[w]hether a
governing-law provision that states that the contract will be
governed by and construed in accordance with the laws of the
State of New York, in a contract not consummated pursuant to New
York General Obligations Law section 5-1401, requires the
application of New York Estates, Powers & Trusts Law section
3-5.1(b)(2), a New York statute that may, in turn, require
application of the law of another state" (see Ministers &
Missionaries Benefit Bd. v Estate of Flesher, 

780 F3d 150, 155

[2d Cir 2014]).
          The statute at the heart of this question, EPTL § 3-5.1
(b) (2), is part of the EPTL article setting forth the
"[s]ubstantive [l]aw of [w]ills" (EPTL art 3); the statute
states, "[t]he intrinsic validity, effect, revocation or


                              - 3 -
                              - 4 -                          No. 131

alteration of a testamentary disposition of personal property,
and the manner in which such property devolves when not disposed
of by will, are determined by the law of the jurisdiction in
which the decedent was domiciled at death."   Thus, under the
statute, if the decedent is domiciled in New York at the time of
death, the devolution of property not disposed of by will is
determined by, among other provisions, EPTL § 5-1.4, which
declares in relevant part:
          "[e]xcept as provided by the express terms of
          a governing instrument, a divorce . . .
          revokes any revocable (1) disposition or
          appointment of property made by a divorced
          individual to, or for the benefit of, the
          former spouse, including, but not limited to
          a disposition or appointment by will, by
          security registration in beneficiary form
          (TOD), by beneficiary designation in a life
          insurance policy or (to the extent permitted
          by law) in a pension or retirement benefits
          plan" (EPTL § 5-1.4 [a]).
          Accordingly, when a person dies while domiciled in New
York, his or her ex-spouse cannot recover any death or retirement
benefits under the decedent's relevant plans because the divorce
prior to death serves as a revocation of the beneficiary
designation by operation of law.   However, since the statute does
not cut off the ex-spouse's family members, New York law would
still appear to permit a resident decedent's former in-law named
as a beneficiary of such plans to recover the benefits upon the
death of the decedent, notwithstanding the divorce.   By contrast,
the former in-law's beneficiary designation would be revoked if
the decedent perished while domiciled in another jurisdiction,

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                               - 5 -                        No. 131

such as Colorado, which has a statute automatically removing ex-
spouses and their relatives as beneficiaries of the decedent's
benefit policies upon death (see Colo Rev Stat § 15-11-804 [2]).
          In addition to these statutory principles, we must look
to the relevant rules for interpreting a benefit plan to discern
the manner in which EPTL § 3-5.1 (b) (2) impacts such plans.
Because the MMBB policies at issue in this case are, in effect,
contracts between Flesher and MMBB for the payment of death and
retirement benefits, they are logically subject to the same rules
of construction as a life insurance policy or similar contract.
Under those rules, a court "bear[s] the responsibility of
determining the rights or obligations of parties under insurance
contracts based on the specific language of the policies," and
unambiguous provisions "must be given their plain and ordinary
meaning" (Sanabria v American Home Assurance Co., 

68 NY2d 866, 868

 [1986]).   "Contracts of insurance, like other contracts, are
to be construed according to the sense and meaning of the terms
which the parties have used, and if they are clear and
unambiguous the terms are to be taken and understood in their
plain, ordinary and proper sense" (Johnson v Travelers Ins. Co.,

269 NY 401, 408

 [1936]; see Roman Catholic Diocese of Brooklyn v
National Union Fire Insurance Company of Pittsburgh, 

21 NY3d 139, 148

 [2013]).   A contract's express choice-of-law clause takes
precedence over any contrary common-law choice-of-law principles,
provided that the contract has some reasonable relationship to


                               - 5 -
                               - 6 -                       No. 131

New York and does not violate New York public policy (see Reger v
National Ass'n of Bedding Mfrs Group Ins. Trust Fund, 

83 Misc 2d 527, 540-541

 [Sup. Ct. Westchester Co. 1975]; see also Bank of
N.Y. v Yugoimport, 

745 F3d 599, 609

 [2d Cir 2014]; see generally
Welsbach Elec. Corp. v MasTec N. Am., Inc., 

7 NY3d 624, 629

[2006] ["Generally, courts will enforce a choice-of-law clause so
long as the chosen law bears a reasonable relationship to the
parties or the transaction," unless the chosen law "violates some
fundamental principle of justice, some prevalent conception of
good morals, some deep-rooted tradition of the common weal"]
[internal quotation marks and citations omitted]).
          We reaffirmed this principle in IRB-Brasil Resseguros,
S.A. v Inepar Invs., S.A. (

20 NY3d at 310

), a case that did not
involve the disposition of property upon death.   In IRB-Brasil
Resseguros, S.A., the plaintiff Brazilian corporation purchased a
series of notes issued by the defendant Uruguayan power company
(see 

id. at 312-313

).   The guarantee contract under which the
notes were issued stated that the agreement would be "governed
by, and . . . be construed in accordance with, the laws of the
State of New York" (id. at 313).   Because the parties'
transaction involved the exchange of more than $250,000, it fell
within the ambit of General Obligations Law § 5-1401 (1), which
states in relevant part, "'[t]he parties to any contract . . .
arising out of a transaction covering in the aggregate not less
than two hundred fifty thousand dollars . . . may agree that the


                               - 6 -
                              - 7 -                         No. 131

law of this state shall govern their rights and duties in whole
or in part, whether or not such contract, agreement or
undertaking bears a reasonable relation to this state'" (id. at
314, quoting General Obligations Law § 5-1401 [1]).   Eventually,
the defendant corporation defaulted on its obligations under the
notes, and the plaintiff corporation sued to recover damages
under the guarantee contract (see id. at 313-314).    The defendant
corporation opposed the suit in part on the ground that, under a
New York common-law conflict-of-laws analysis, Brazilian
substantive law should be applied in interpreting the contract
(see id. at 313).
          On appeal, we decided that New York substantive law,
but not New York choice-of-law principles or Brazilian law,
controlled the interpretation of the contract in accordance with
the choice-of-law clause (see id. at 314-316).   As a starting
point for the analysis, we determined that the Legislature had
passed General Obligations Law § 5-1401 out of concern that
parties to large contracts, which lacked sufficient contacts with
New York, might be unable to effectively invoke New York
substantive law, despite an express contractual provision
designating New York law as the controlling legal framework,
because courts might apply common-law choice-of-law principles
and decide that the law of a jurisdiction with a greater
connection to the transaction should control (see id. at 314).
Hence, the statute was designed to allow parties to large


                              - 7 -
                              - 8 -                        No. 131

contracts that were otherwise unconnected to New York to choose
to have their contracts interpreted in accordance with New York
law (see id. at 315).
          "Applying General Obligations Law §§ 5-1401 and 5-1402
to the facts of the present case," we "conclude[d] that New York
substantive law must govern, since the parties designated New
York in their choice-of-law provision in the Guarantee and the
transaction exceeded $ 250,000" (id. at 315).   We also rejected
the defendant corporation's argument that the entirety of New
York common law, including New York's common-law choice-of-law
principles, should control the interpretation of the contract
because the guarantee contract used the unlimited phrase
"governed by . . . the laws of the State of New York," without
explicitly excluding New York choice-of-law rules (id. at 315).
We explained:
          "Express contract language excluding New
          York's conflict-of-laws principles is not
          necessary. The plain language of General
          Obligations Law § 5-1401 dictates that New
          York substantive law applies when parties
          include an ordinary New York choice-of-law
          provision, such as appears in the Guarantee,
          in their contracts. The goal of General
          Obligations Law § 5-1401 was to promote and
          preserve New York's status as a commercial
          center and to maintain predictability for the
          parties. To find here that courts must
          engage in a conflict-of-laws analysis despite
          the parties' plainly expressed desire to
          apply New York law would frustrate the
          Legislature's purpose of encouraging a
          predictable contractual choice of New York
          commercial law and, crucially, of eliminating
          uncertainty regarding the governing law."
          (id. at 315-316).

                              - 8 -
                               - 9 -                          No. 131

          We also observed that the Restatement (Second) of
Conflict of Laws supported the conclusion that the contractual
choice-of-law clause was intended to apply only New York
substantive law because that treatise said, "'in the absence of a
contrary indication of intention, the reference [to the law of
the state chosen by the parties] is to the local law of the state
of the chosen law'" (id. at 316, quoting Restatement [Second] of
Conflict of Laws § 187 [3]).   Importantly, we continued,
"'[l]ocal law' is defined as 'the body of standards, principles
and rules, exclusive of its rules of Conflict of Laws'" (id.
[emphasis in original], quoting Restatement [Second] of Conflict
of Laws § 4 [1]).   Thus, we said, "[u]nder the Restatement
(Second), the parties' decision to apply New York law to their
contract results in the application of New York substantive law,
not New York's conflicts principles," and we added, "[i]t strains
credulity that the parties would have chosen to leave the
question of the applicable substantive law unanswered and would
have desired a court to engage in a complicated conflict-of-laws
analysis, delaying resolution of any dispute and increasing
litigation expenses" (id. at 316).     Accordingly, IRB-Brasil
Resseguros, S.A. holds that a contract which both is subject to
General Obligations Law § 5-1401 and designates New York law as
controlling must be interpreted in accordance with New York
substantive law, and the decision supports the more general
proposition that, in most instances, a contractual provision


                               - 9 -
                             - 10 -                          No. 131

stating that New York law governs must be read to invoke only New
York substantive law, rather than common-law choice-of-law
principles.
          The principle that a contractual governing-law
provision generally precludes a common-law choice-of-law analysis
has never been extended to eliminate the application of a
statutory choice-of-law directive, which otherwise would be the
applicable local and substantive law of the State (see
Restatement [Second] of Conflict of Laws § 4 [1]).   In fact, as
we explained in IRB-Brasil Resseguros, S.A., the parties' choice
of New York law does not remove a contract from the ambit of
"'[l]ocal law,'" and because such local law includes New York's
substantive "'body of standards, principles and rules,'" New York
statutory standards, principles and rules logically govern a
contract that deems the State's law to be controlling (IRB-Brasil
Resseguros, S.A., 

20 NY3d at 316

, quoting Restatement [Second] of
Conflict of Laws § 4 [1]).
          In that vein, there is ample authority demonstrating
that a New York statute embodies the State's substantive policy,
which we cannot readily presume to have been cast aside by a
contractual governing-law provision.   New York courts have held
that where a conflict arises between the provisions of a statute
and the terms of a contract, the statute typically controls
because it is the binding substantive policy determination of the
Legislature (see e.g. Fred Schutzman Company v Park Slope


                             - 10 -
                              - 11 -                         No. 131

Advanced Medical, PLLC, 

128 AD3d 1007, 1008

 [2d Dept 2015]
(Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 

168 AD2d 121, 131

[2d Dept 1991]), though a statutory right may be waived expressly
or by unequivocal and necessary implication (see John J. Kassner
& Co. v New York, 

46 NY2d 544, 551

 [1979]; O'Brien v Lodi, 

246 NY 46, 50

 [1927]).   Additional authority for a statute's role as the
substantive local law of a state can be found in the Restatement
(Second) of Conflict of Laws, which declares that "[a] court,
subject to constitutional restrictions, will follow a statutory
directive of its own state on choice of law" (Restatement
[Second] of Conflict of Laws § 6 [1] [emphasis added]).    Thus,
unlike the common-law conflict rules at issue in IRB-Brasil
Resseguros, S.A. and similar cases, statutory rules make up the
substantive law of the state and cannot be easily or
presumptively dispensed with by contrary provisions of a
contract; indeed, in some instances, it is impossible for
contracting parties to avoid the application of a state statute,
even where they clearly and expressly agree to do so (see CONRAIL
v Hudacs, 

223 AD2d 289, 293

 [3d Dept 1996], aff'd 

90 NY2d 958

[1997]; cf. Estro Chemical Co. v Falk, 

303 NY 83, 87

 [1951]).      It
follows that, where, as here, the parties have agreed to apply
the substantive law of New York, they presumably have agreed to
eliminate common-law choice-of-law rules that are inconsistent
with their definitive choice of law under the contract (see IRB
Brasil Resseguros, N.A., 

20 NY3d at 316

), but they have not


                              - 11 -
                              - 12 -                         No. 131

clearly manifested an intent to waive application of statutory
choice-of-law directives such as EPTL § 3-5.1 (b) (2), which form
part of the very substantive law that the parties have opted to
apply.
                                 B
           Nonetheless, the majority insists that EPTL § 3-5.1 (b)
(2) is a choice-of-law rule that stands on equal footing with the
common-law choice-of-law principles discussed in IRB-Brasil
Resseguros, S.A., such that a contractual choice-of-law clause
necessarily forecloses application of the statute in the same
manner as it does the common-law rules (see majority op. at 9-
11).   In this respect, the majority's argument appears to rest on
two false premises: (1) a statute that directs the application of
another state's testamentary laws is no different from the common
law's contacts-based choice-of-law framework and hence can never
be a substantive law (see majority op. at 10); and (2) the
enforcement of a statute that is based on a common-law rule may
be easily waived in the same manner as the common-law rule that
inspired it (see majority op. at 11).   As will be shown, however,
the first premise is unfounded in this case because it is
contrary to the basic character and history of EPTL § 3-5.1 (b)
(2) (not to mention the authorities discussed above), and the
second premise is not supported by any legal authority.
           In adopting the first premise set forth above, the
majority misapprehends the nature of EPTL § 3-5.1 (b) (2).    While


                              - 12 -
                             - 13 -                          No. 131

EPTL § 3-5.1 (b) (2) does direct the choice of a particular
state's law on the handling of a certain type of property upon a
person's death, it does not codify the sort of complex decisional
choice-of-law analysis which parties presumably seek to avoid in
agreeing that the law of New York will govern a contract.    Unlike
that common-law analysis, which requires the parties to any type
of contract to determine on a case-by-case basis whether they and
the transaction have sufficient contacts with a particular state
to trigger the application of that state's substantive law (see
Zurich Ins. Co. v Shearson Lehman Hutton, Inc., 

84 NY2d 309

, 317-
320 [1994]), the statute here provides clearer guidance for a
narrower subset of contracts by specifying that the law of the
decedent's domicile at death will invariably apply to a
testamentary or similar disposition of personal property.    In
this sense, EPTL § 3-5.1 (b) (2) is just as much a substantive
determination of the most reasonable means to dispose of personal
property as it is a choice-of-law measure, and as a result, it
does not set forth simply another extremely broad and complex
conflict analysis that may be presumptively discarded by a
contractual governing-law clause.
          Indeed, the Legislature plainly considered EPTL § 3-5.1
(b) (2) to be a significant part of the State's substantive
policy regarding the distribution of personal property upon
death, distinguishing it from conflict principles that arose
purely from decisional law and are not protected by legislation.


                             - 13 -
                              - 14 -                         No. 131

The Legislature enacted the predecessor statutes to EPTL § 3-5.1
(b) (2) to enshrine in New York statutory law the common-law rule
that the law of the state where a decedent is domiciled at the
time of death should govern the disposition of personal property
upon death (see Revisers' Notes, EPTL § 3-5.1; see also Matter of
Gifford, 

279 NY 470, 474-475

 [1939]).   In taking this step, the
Legislature evidently made a substantive decision that the
aforementioned rule was so important that it should not be
disturbed in this State by any subsequent change in the common
law via judicial decision-making.
          In addition, the Legislature enacted substantive
changes to the scope of this rule over time, making conscious
policy choices to chart the course of this aspect of estates law.
When the rule first appeared in statutory form in 1889, the
statute stated, "[e]xcept where special provision is otherwise
made by law, the validity and effect of a testamentary
disposition of any other property [besides realty] situated
within the State, and the ownership and disposition of such
property, where it is not disposed of by will, are regulated by
the laws of the state or country, of which the decedent was a
resident, at the time of his death" (Annotated Code of Civil
Procedure of 1889, § 2694).   In 1911, when the Legislature passed
Decedent Estate Law ("DEL") § 47, it set forth the same rule but
gave individuals some flexibility to choose the law of
disposition for all of their personal property in the express


                              - 14 -
                               - 15 -                        No. 131

provisions of a will -- not other means of disposition -- by
adding, "[w]henever a decedent, being a citizen of the United
States, wherever resident, shall have declared in his will and
testament that he elects that such testamentary dispositions
shall be construed and regulated by the laws of this state, the
validity and effect of such dispositions shall be determined by
such laws" (L 1911, ch 244, § 1).
          Furthermore, the incorporation of DEL § 47 into the
EPTL via section 3-5.1 (b) (2) was no less substantive than the
previous legislation.    In that regard, the Legislature passed
EPTL § 3-5.1 (b) (2) as part of a legislative package meant to
overhaul the substance of New York's estates law.   As stated by a
member of the Temporary Commission on Estates, which drafted the
EPTL, the legislation was a provision "for the substantive law"
and designed "to collect into one volume all the substantive law
relating to estates" (Letter of Hon. John M. Keane, Bill Jacket,
L 1966, ch 952 at 76).   In approving the legislation, the
Governor noted that it "ma[de] numerous substantive changes in
existing law" and wisely consolidated previous enactments in this
field (Governor's Memorandum of Approval, Bill Jacket, L 1966, ch
952, at 91).   Indeed, article 3 of the EPTL, which contains EPTL
§ 3-5.1 (b) (2), is entitled "Substantive Law of Wills" (EPTL
article 3), underscoring that its provisions, such as EPTL § 3-
5.1 (b) (2), are exactly the sort of substantive expression of
New York public policy that contracting parties adopt when they


                               - 15 -
                             - 16 -                        No. 131

agree to have their agreement governed by New York law.1
          As for EPTL § 3-5.1 more particularly, the Legislature
passed that statute in response to substantive policy concerns.
One scholar has described the development of the statute and the
driving policy considerations behind it as follows:
          "Recognizing 'the need for a fresh approach
          to the legal problems presented by
          multi-jurisdictional transactions and for
          a release from the traditional bind of
          antiquated and moribund rules,' the Bennett
          Commission undertook to design 'substantive
          rules to govern the testamentary and
          intestate distribution of
          multi-jurisdictional estates.' The resulting
          comprehensive set of rules for the regulation
          of wills and estates that are related to a
          jurisdiction other than New York is set forth
          in EPTL 3-5.1 and makes New York 'a
          pathfinder in this area of estate law.'"
          (Joseph T. Arenson, An Analysis of Certain
          Provisions of the Estates, Powers and Trusts
          Law, 33 Brook L Rev 425, 445 [1966]).
And while this new "pathfind[ing]" law "codified" the "settled
rule that the intestate distribution of the personal property of
a decedent be determined by the law of his domicile at the time


     1
        The majority observes that the title of article 3 "is not
dispositive" because the "text of [a] statute takes precedence
over title, which cannot alter or limit the language in the body
of a statute itself" (majority op. at 11 n4). That is true, and
I do not suggest otherwise. But it is equally true that the
title of article 3 is in accord with the plain meaning of the
text and history of EPTL § 3-5.1 (b) (2), all of which support
the conclusion that EPTL § 3-5.1 (b) (2) is part of the
substantive law of New York (see D'Amico v Christie, 

71 NY2d 76, 84

 [1987] [where statutory text and history suggest a certain
interpretation, the title of the statute reinforces that
interpretation because the law's meaning "is made plain even by
its title"]).

                             - 16 -
                             - 17 -                            No. 131

of his death," it did so in the context of a statutory framework
that had been "clarified and expanded" by EPTL § 3-5.1 as a whole
(id. at 445-448 [emphasis added]).    In other words, EPTL § 3-5.1
is not a reflexive or inconsequential repetition of a common-law
conflict principle that might be readily waived sub silentio by
parties to a contract, but instead represents the Legislature's
considered judgment to keep some aspects of the common law
constant while simultaneously modifying others.   As a result,
EPTL § 3-5.1 (b) (2) works in tandem with the other provisions of
the EPTL to create a body of local substantive standards for the
disposition of personal property upon a person's death, and
contracting parties' choice of New York law invokes, and does not
waive, the enforcement of the statute.
          This legislative policy choice casts the contracts here
in a different light than the one in IRB-Brasil Resseguros, S.A.
In that case, because the contract fell within the ambit of
General Obligations Law § 5-1401, we interpreted the contract in
light of the policy behind that statute (see IRB-Brasil
Resseguros, S.A., 

20 NY3d at 313-315

).    Given that General
Obligations Law § 5-1401 reflected the Legislature's desire to
make it easier for parties to large contracts to avoid a common-
law choice-of-law analysis, we harmonized that policy with the
language of the contract to infer that the parties' generalized
invocation of New York law reflected their intent to waive the
application of common-law conflict rules in a manner consistent


                             - 17 -
                              - 18 -                        No. 131

with -- indeed, buttressed by -- the legislative scheme, and in
that context, we concluded that it would have made little sense
to draw a contrary inference regarding the parties' wishes (see
id. at 315-316).   By contrast, here, any inference that the
parties intended to eliminate the application of EPTL § 3-5.1 (b)
(2) would be in tension with the Legislature's desire to ensure
that, in most cases, personal property not disposed of by will
shall pass in accordance with the laws of the decedent's last
domicile, and hence we must reject the view that the parties
implicitly signaled an intent to abandon that legislative
directive and instead interpret the contract consistently with
the substantive policy embodied in EPTL § 3-5.1 (b) (2), just as
we did in IRB-Brasil Resseguros, S.A.
          Moreover, even if it can be assumed that the parties to
a contract usually mean to escape the reach of certain state
statutes solely by declaring that the contract will be "governed
by the laws of New York," it would make little sense to make that
assumption with respect to the particular statute at issue here.
After all, the parties to a death benefit contract would
ordinarily expect that, regardless of which state's law they
choose, they will be subject to the rule that the law of the
state of domicile determines the recipients of personal property
upon the owner's death.   That is so because a clear majority of
states follow that rule (see Hoglan v Moore, 219 Ala 497, 501
[Ala 1929]; Vansickle v Hazeltine, 

29 Idaho 228, 233-234

 [Idaho


                              - 18 -
                             - 19 -                           No. 131

1916]; Gibson v Dowell, 

42 Ark 164, 166

 [AK 1883]; Estate of
Moore, 190 Cal App 2d 833, 841-843 [Cal Ct App, 4th App Dist
1961]; Estate of Madril v Madril, 71 Colo 123, 126 [Colo 1922];
Oehler v Olson, 2005 Conn Super LEXIS 574, *5-*6 [Conn Super Ct
2005]; PNC Bank v N.J. State SPCA, 2008 Del Ch LEXIS 288, *5 n3
[Del Ch 2008]; Cockrell v Lewis, 389 So 2d 307, 308 [Fla Dist Ct
App 5th Dist 1980]; In re Estate of Grant, 34 Haw 559, 564 [Haw
1938]; Davis v Upson, 209 Ill 206, 212-213 [Ill 1904]; Thieband v
Sebastian, 10 Ind 345, 347 [Ind 1858]; Estate of Lincoln v
Briggs, 

199 NW2d 337, 338

 [Iowa 1972]; In re Estate of Rivas, 233
Kan 898, 901 [Kan 1983]; Radford v Fidelity & Columbia Trust Co.,
185 Ky 453, 459 [Ky 1919]; Williams v Pope Mfg. Co., 52 La Ann
1417, 1438-1439 [LA 1900]; Smith v Howard, 86 Me 203, 205-206 [Me
1894]; Harding v Schapiro, 120 Md 541, 548 [Md 1913]; Blake v
Williams, 23 Mass 286, 314 [Mass 1828]; In re Stewart Estate, 

342 Mich 491, 499-501

 [Mich 1955]; Lane v St. Louis Union Trust Co.,
356 Mo 76, 82 [Mo 1947]; In re Smith's Estate, 

126 Mont 558, 563

[Mont 1953]; In re Estate of Forney, 43 Nev 227, 232 [Nev 1919];
Cade v Davis, 96 NC 139, 147 [NC 1887]; In re Estate of Coleman,

98 NW2d 784, 789

 [ND 1959]; Estate of Luoma, 

2011-Ohio-4701

, P28
[Ohio Ct App 2011]; In re Revard's Estate, 

1936 OK 844

, P10 [Okla
1936]; Pickering v Pickering, 64 RI 112, 117-120 [RI 1940]; cf.
Smith v Normart, 51 Ariz 134, 138 [Ariz 1938]; but see Neblett v
Neblett, 112 Miss 550, 559 [Miss 1916]; State by Van Riper v Am.
Sugar Ref. Co., 20 NJ 286, 301-302 [NJ 1956]).   Therefore,


                             - 19 -
                              - 20 -                          No. 131

although the parties here presumably wished that New York
contract interpretation rules would determine the decedent's
rights during life and some other aspects of the contract, it
would have been odd for them to have sought the application of an
outlier rule for choosing the law regarding the disposition of
the property upon death.
           By the same token, the commonplace nature of the rule
set forth in EPTL § 3-5.1 (b) (2) belies the majority's
suggestion that Flesher and MMBB could not have anticipated that
their benefit contracts would trigger the law of the state where
Flesher would be domiciled at death (see majority op. at 14; id.
at n7).2   Certainly, MMBB, which has as one of its central


     2
        In discussing the expectations of the parties to the
contracts here, the majority seems to focus primarily on MMBB's
expectations and lack of desire to transfer the benefits of the
plans in accordance with EPTL § 3-5.1 (b) (2) (see majority op.
at 13-14). To an extent, this approach is understandable because
MMBB drafted the plans at issue here and had more control over
their terms. But a focus on MMBB's presumed wish to avoid the
purported burdens imposed by EPTL § 3-5.1 (b) (2) -- a wish not
directly expressed in the benefit plans -- overlooks the fact
that Flesher presumably expected that his property would devolve
in accordance with the entirety of New York's substantive
statutory law, i.e., that all of his personalty would pass under
the laws of the State where he chose to live out his final days.
Indeed, while the majority assumes that Flesher wanted to give up
the protections which that State's law might confer upon his
property, such as the automatic elimination of the inheritance
rights of his ex-spouse LeAnn Snow and her family, there is no
basis for that assumption, especially since there is no
indication that Flesher willingly waived the potential benefits
of EPTL § 3-5.1 (b) (2) in exchange for some particular valuable
consideration (cf. Welsbach Elec. Corp., 

7 NY3d at 630

 ["[n]o
good reason can be suggested why a contractor cannot, for a
valuable consideration, waive the provisions of the statute

                              - 20 -
                             - 21 -                           No. 131

purposes the administration of property distributions upon a plan
member's death, had good reason to learn of the widespread
domicile-based rule and to explicitly waive application of that
principle if it saw fit to do so.   Instead, MMBB agreed to
contracts containing only a generic invocation of New York law,
without addressing either EPTL § 3-5.1 (b) (2) in particular or
the routinely-followed doctrine it embodies more generally.
          The majority also claims that, absent a finding that a
generalized governing-law clause presumptively waives statutory
choice-of-law directives such as EPTL § 3-5.1 (b) (2), benefit
plan administrators will face the intolerable burden of
familiarizing themselves with the revocation laws of every state
where plan members might die because they cannot know in advance
the state of domicile at death (see majority op. at 13-14).
Initially, though, there is no proof in the record of the extent
of this alleged burden, and nothing suggests that organizations
like MMBB are unable to have their attorneys perform the
necessary research without extreme expense or delay.   More to the
point, plan administrators can eliminate this burden by adding an
extra sentence to each benefit contract expressly precluding the
application of the chosen jurisdiction's statutory choice-of-law
directives.
          All of the foregoing discussion belies the majority's



giving him the right to file a notice of lien"] [emphasis added,
internal quotation marks, punctuation and citation omitted]).

                             - 21 -
                              - 22 -                        No. 131

evident belief that EPTL § 3-5.1 (b) (2) is no different than,
and creates the same practical difficulties as, the common-law
conflicts analysis discussed in IRB-Brasil Resseguros, S.A.
          As for the second major premise underlying the
majority's opinion -- that a statute based on the common law may
be waived by a generalized governing-law clause because such a
clause may waive certain common-law rules -- it is simply
unprecedented.   The majority does not cite any authority for the
novel proposition that a statute inspired by the common law may
be more readily evaded by a governing-law clause than a statute
designed to depart from the common law, and there is no logical
support for that notion.   Regardless of whether the Legislature
adopts or disavows a common-law principle in passing a law, the
statute retains its force as a binding substantive policy choice
of the State, compelling the adherence of contracting parties
absent a clear waiver of its application.   Indeed, if anything,
the Legislature's decision to incorporate a common-law rule into
a statute shows its desire to elevate the rule's stature above
its prior position as an ordinary common-law rule that might have
been more easily waived.
          In sum, a contract section that specifies that the
contract must be "governed by and construed in accordance with
the laws of the State of New York" should be interpreted to
incorporate the entire body of New York's substantive statutory
law (see Restatement [Second] of Conflict of Laws §§ 187 [1]; 187


                              - 22 -
                             - 23 -                          No. 131

[3]), including EPTL § 3-5.1 (b) (2).   Thus, I would answer the
first certified question in the affirmative.
                               II.
          Because I would answer the first certified question in
the affirmative, I find it necessary to answer the second
certified question to resolve this case.   The second question
asks "whether a person's entitlement to proceeds under a death
benefit or retirement plan, paid upon the death of the person
making the designation, constitutes 'personal property . . . not
disposed of by will' within the meaning of New York Estates,
Powers & Trusts Law section 3-5.1(b)(2)" (Matter of Missionaries
and Ministers Benefit Bd., 

780 F3d at 155

).    As noted in this
question, EPTL § 3-5.1 (b) (2) applies to, among other things, a
decedent's "personal property . . . not disposed of by will," and
it incorporates a related statutory subsection's definition of
"personal property" as "any property other than real property,
including tangible and intangible things" (EPTL § 3-5.1 [a] [2]).
The parties agree that, in general, a benefit plan and the rights
thereunder are "personal property," as those contractual rights
are "intangible things" which do not create or transfer an
interest in real property.
          The Snows nevertheless assert that the plan and any
payments thereunder were not Flesher's personal property, and
hence are not his estate's property, because MMBB must transfer
all benefits under the plans to the Snows immediately upon death


                             - 23 -
                              - 24 -                        No. 131

in accordance with the beneficiary designation forms.    But a
member of a benefit plan, such as Flesher, personally controls
the entitlement to the proceeds of the plan, holding an
intangible property right that is "personal" to the member and
subject to his or her disposition "not by will" via the governing
contract (EPTL § 3-5.1 [b] [2]).   In that regard, like the holder
of a life insurance policy, a member of a benefit plan
essentially owns the benefits of the plan while he or she is
alive because he or she can control the transfer of those funds
by choosing a beneficiary.   It is for this reason that, under the
common law of this State, a life insurance policy has
traditionally been regarded as a chose in action, which is the
personal property of the holder (see Olmsted v Keyes, 

85 NY 593, 591-601

 [1881]).   Thus, a benefit plan and its attendant rights
are the "personal property" of the plan member during his or her
life within the meaning of EPTL § 3-5.1 (b) (2), and until the
validity of a beneficiary designation can be conclusively
established in a probate proceeding, these property rights become
inextricably linked with the plan member's estate and the
proceedings thereon following his or her death.
          Additionally, a death benefit plan and a retirement
benefit plan confer property rights that are "not disposed of by
will within the meaning of EPTL § 3-5.1 (b) (2).   It is true, as
the Snows observe, that the phrase "not disposed of by will,"
read in isolation, could be construed as a reference to the


                              - 24 -
                              - 25 -                         No. 131

transfer of property in accordance to the rules of intestate
succession rather than by a written instrument like a benefit
plan.   However, in the context of the remaining terms of EPTL §
3-5.1 (b) (2), the disputed phrase applies to benefit plans.
Notably, the statute is broadly worded to apply to virtually all
dispositions of personal property upon death, including both
"testamentary disposition[s]" of property and the "dev[olution]"
of property "not disposed of by will," and given this wide-
ranging language, it makes sense to interpret the phrase "not
disposed of by will" to cover both property that passes by rules
of intestate succession and property, such as entitlements under
a benefit plan, that devolves via a beneficiary designation not
included in a formal will.   Accordingly, because a benefit plan,
which belongs to the plan member in life and transfers funds upon
death, resembles a substitute testamentary instrument such as a
trust with lifetime benefits (see e.g. Matter of Estate of
Reynolds, 

87 NY2d 633, 636

 [1996] [trust as testamentary
instrument] Matter of Estate of Riefberg, 

58 NY2d 134, 138-139

[1983] [stockholders' agreement]; see also 38 NY Jur Decedents'
Estates § 260) and yet is not technically a will or controlled
thereby, it qualifies as personal property of the decedent which
is "not disposed of by will" under EPTL § 3-5.1 (b) (2).
           The Snows maintain that it would be illogical to hold
that EPTL § 3-5.1 (b) (2) governs death and retirement benefit
plans because another statute, EPTL § 13-3.2 (a), expressly


                              - 25 -
                              - 26 -                         No. 131

preserves plan beneficiary designations that EPTL § 3-5.1 (b) (2)
might otherwise disrupt if it applied to such benefit plans.
However, this contention runs afoul of the modest intended scope
of EPTL § 13-3.2 (a).   That statute says, "[i]f a person is
entitled to receive [ ] payment in money, securities or other
property under a pension, retirement, death benefit, stock bonus
or profit-sharing plan . . . the rights of persons so entitled or
designated and the ownership of money, securities or other
property thereby received shall not be impaired or defeated by
any statute or rule of law governing the transfer of property by
will, gift or intestacy."   At first glance, because my reading of
EPTL § 3-5.1 (b) (2) would make it a statute that governs a vast
array of transfers of personal property upon the death of the
owner, including transfer by will or intestacy, EPTL § 13-3.2 (a)
arguably seems to preserve beneficiary designations in benefit
plans, even where EPTL § 3-5.1 (b) (2) threatens to undo those
designations.   But the legislative history of the statute
clarifies that this provision was never intended to create the
sort of perplexing conflict with EPTL § 3-5.1 (b) (2) that the
Snows envision.
          As observed by the Appellate Division in Kane v Union
Mut. Life Ins. (

84 AD2d 148

 [2d Dept 1981]), the legislative
history of EPTL § 13-3.2 (a) reveals that it was primarily
intended to recodify a provision of the Personal Property Law
that had prevented courts and estate representatives from


                              - 26 -
                             - 27 -                       No. 131

invalidating beneficiary designations on the ground that the
designation forms did not bear the same formalities as a will.
The Appellate Division explained:
          "Generally stated, the law of this State is
          that the designation of a beneficiary to a
          pension, retirement annuity or other
          insurance contract is not a testamentary act
          which must comply with the Statute of Wills
          (see Study: Braucher, Unification of the
          Rules Governing Payment of Funds by
          Institutional Debtors on Death of the Person
          Entitled and Designations of Beneficiaries to
          Receive Payment of Such Funds, 1951 Report of
          NY Law Rev Comm, pp 609, 618). Former
          section 24-a of the Personal Property Law,
          the predecessor of EPTL 13-3.2, was
          recommended by the Law Revision Commission
          simply to remove 'any doubt as to the
          validity and effectiveness of beneficiary
          designations' of pension, annuity and
          insurance contracts and to indicate that such
          designations were not required to be executed
          with the formality required by the Statute of
          Wills (see 1952 Report of NY Law Rev Comm, p
          177). Accordingly, the statute provides that
          the rights of such beneficiaries 'shall not
          be impaired or defeated by any statute or
          rule of law governing the transfer of
          property by will, gift or intestacy' (EPTL
          13-3.2, subd [a]), provided that the
          designation is made in writing, is signed by
          the person making it, and is, so far as here
          relevant, made in accordance with the rules
          prescribed for the pension plan or is agreed
          to by the insurer (EPTL 13-3.2, subd [d],
          pars [1], [2]). Thus, the statute relied
          upon by the Kane sons merely provides that
          such designations of beneficiaries are not
          invalid if accomplished by a document not
          executed with the formalities required by the
          Statute of Wills, but it does not answer the
          question raised here, the converse of that
          proposition, namely, whether a provision in a
          will changing the beneficiaries of an
          insurance contract is valid." (id. at 151
          [emphasis in original]).


                             - 27 -
                              - 28 -                         No. 131

Clearly, then, the statute was intended to overcome a
technicality regarding the formalities required by the Statute of
Wills, not to prevent the application of EPTL § 3-5.1 (b) (2) and
similar laws to benefit plans.    That being so, EPTL § 13-3.2 (a)
does not cast doubt on my proposed application of EPTL § 3-5.1
(b) (2) to benefit plans.   In light of my conclusion that the
latter statute encompasses death benefit and retirement plans, I
would answer the second certified question in the affirmative.
                                 III.
          In relation to contracts, choice-of-law issues are
often vexing and complex, routinely dividing courts over the
conclusion that a certain state's law applies and the proper
method by which such a conclusion should be reached.    But, the
vagaries of this area of law should not cause us to lose sight of
the vital substantive policies established by the Legislature,
and where it is possible to reconcile those policies with the
terms of the parties' contract, it behooves us to do so.   Here,
because the substantive policy of New York requires the
application of EPTL § 3-5.1 (b) (2) to retirement and death
benefit plans, I conclude that, absent an unequivocal waiver of
the statute's application, benefit plans of the kind at issue
here should be interpreted to trigger EPTL § 3-5.1 (b) (2).
Accordingly, I would answer the first and second certified
questions in the affirmative, and I dissent from the majority's
contrary decision.


                              - 28 -
                                - 29 -                           No. 131

*   *   *   *   *   *   *   *     *      *   *   *   *   *   *    *   *
Following certification of questions by the United States Court
of Appeals for the Second Circuit and acceptance of the questions
by this Court pursuant to section 500.27 of this Court's Rules of
Practice, first certified question answered in the negative and
second certified question not answered as academic. Opinion by
Judge Stein. Chief Judge Lippman and Judges Pigott and Fahey
concur. Judge Abdus-Salaam dissents and votes to answer the
certified questions in the affirmative in an opinion in which
Judge Rivera concurs.

Decided December 15, 2015




                                - 29 -