
    In the Matter of the Estate of William D. Gardner, Deceased. Isabelle Lewis, Respondent; Perrie A. Forney, as Executrix of William D. Gardner, Deceased, Appellant.
   — Order, Surrogate’s Court, New York County (Renee R. Roth, S.), entered February 6, 1991, which, inter alia, directed an accounting, unanimously affirmed, with costs.

Petitioner’s right to an accounting is dependent upon recognition of Catherine Gardner as "surviving spouse” of decedent. As it has been undisputed that they were married, the burden was upon respondent to establish a disqualification under the sections relied upon by her, EPTL 5-1.2 (a) (5) and (6) (Matter of Maiden, 284 NY 429; Matter of Riefberg, 58 NY2d 134). While it is clear that Catherine Gardner departed the marital residence at least five years prior to decedent’s death, to care for her ill sister in Florida, there was an inadequate showing of the requisite elements that such departure was unjustified and without decedent’s consent (supra). Respondent also failed to establish that Catherine Gardner had a duty to support decedent; had the means or ability to do so; and failed or refused to do so. Concur — Murphy, P. J., Rosenberger, Ellerin, Kassal and Rubin, JJ., concur.  