Estate of Schwartz, Matter of

Decision Date26 November 1986
Citation509 N.Y.S.2d 729,133 Misc.2d 1064
PartiesIn the Matter of the ESTATE OF Mindy Sue SCHWARTZ, Deceased. Surrogate's Court, Nassau County
CourtNew York Surrogate Court

Freedman, Weisbein & Samuelson, P.C., Garden City, for administrator.

Bennett, Scholly, Pape, Rice & Schure, Rockville Centre, for surviving spouse.


In these proceedings the administrator of the estate of Mindy Sue Schwartz seeks a determination that the surviving spouse caused the death of the decedent and that the estate is entitled to equitable distribution pursuant to section 236 of the Domestic Relations Law. The surviving spouse seeks an order granting summary judgment and the fiduciary of the estate has cross-moved for summary judgment on the question of equitable distribution. The petition incorporates a proceeding for wrongful death.

Mindy Sue Schwartz and Samuel Schwartz were married on October 23, 1978. On or about August 19, 1983, Mindy Sue commenced a divorce proceeding in the Supreme Court, Nassau County. In August, 1985, she was found dead at her residence in Woodmere, New York. At the time of her death, the divorce proceeding had not yet progressed to trial.

In the proceeding for letters of administration, the court granted temporary letters of administration to the decedent's father, Kalman Sperber and authorized him to commence a proceeding for wrongful death and equitable distribution subject to any possible motions that may be brought after the commencement thereof (NYLJ, January 27, 1986, p 16, col 6). Thereafter, the administrator filed the instant petition.

The surviving spouse seeks accelerated judgment on the grounds that equitable distribution is not available to the estate of a deceased spouse who dies before a judgment granting a divorce. The administrator cross-moves for an order granting summary judgment.

The threshold question, then, is whether equitable distribution of marital property can be directed where a party to a divorce proceeding dies during the pendency of the proceeding.

The purpose of New York's equitable distribution statute, Domestic Relations Law, section 236 is to provide for distribution of marital property in a fair and just manner (Rodgers v. Rodgers, 98 A.D.2d 386, 470 N.Y.S.2d 401). It was the Legislature's intention that marriage be viewed as an economic partnership (Governor's Memorandum of Approval, McKinney's Session Laws of NY, 1980, p 1863; Hebron v. Hebron, 116 Misc.2d 803, 456 N.Y.S.2d 957).

However, in New York, the right to equitable distribution of marital property accrues only upon dissolution or termination of the marriage. Section 236(B)(5)(a) of the Domestic Relations Law provides "... the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment."

Where a divorce proceeding does not result in a termination of the marriage, no distribution of marital assets may be effected (Brady v. Brady, 101 A.D.2d 797, 475 N.Y.S.2d 470, affd. 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290; Siegel, Practice Commentaries, McKinney's Cons.Law of N.Y., Book 14, CPLR C236B:7, p. 212 ).

The general rule is that where one party dies prior to a decree dissolving or terminating the marriage, the proceeding abates. This conclusion is premised on the theory that the court loses jurisdiction to determine the status of the parties and any ancillary issues regarding their property rights (E.g. Haviland v. Haviland, 333 Pa.Super. 162, 481 A.2d 1355; Castonguay v. Castonguay, 166 N.J.Super. 546, 400 A.2d 130.

Exceptions have been recognized where there is a written decision, an oral decision granting the divorce (Roeder v. Roeder, 103 Wis.2d 411, 308 N.W.2d 904; where testimony had been taken (Fulton v. Fulton, 204 N.J.Super. 544, 499 A.2d 542) or where the court granted equitable distribution by decree in the absence of a divorce decree (Reese v. Reese, 351 Pa.Super. 521, 506 A.2d 471).

In New York, the rule is that a divorce proceeding abates at the death of either party (1 Foster-Freed, Law and the Family, sec 5:23). At death, the marital relation no longer exists and a judgment cannot be entered (Cornell v. Cornell, 7 N.Y.2d 164, 196 N.Y.S.2d 98, 164 N.E.2d 395; Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891, affd. 52 N.Y.2d 850, 437 N.Y.S.2d 77, 418 N.E.2d 670) with the exception that a judgment can be entered nunc pro tunc where a decision was rendered granting the divorce (Cornell v. Cornell, supra; Jayson v. Jayson, 54 A.D.2d 687, 387 N.Y.S.2d 274). At the time of Mindy Sue's death, the parties were still married and no decision had been rendered, either oral or written.

The laws of New York do not entitle each spouse to a present vested ownership in marital property during marriage, as in community property states (E.g. Idaho Code, sec. 32-906 Nev.Rev.Stat., sec. 123.220 La.Civ.Code Ann. Art. 2336 see Calahan, Community Property Law in the United States sec 7.14; 13 Creighton L Rev 71). Under New York's common law system, ownership is determined by title. There is no provision for equitable division of property following death. The beneficiaries of the estate of the deceased spouse succeed to the property to which the decedent held title (subject to the spouse's elective share ). If the commencement of a divorce proceeding automatically entitled the spouse to equitable distribution the laws of intestacy and testamentary disposition would be impaired (See Haviland v. Haviland, supra ). A surviving spouse may have a right to elect against his or her spouse's estate but that right does not come into being until death. There is no vested right, if any, until death (EPTL 5-1.1). With section 236 of the Domestic Relations Law there is no vested right during the marriage, the right coming into being only when there is a divorce.

The court concludes that, as a general rule, the right to equitable distribution of marital property abates at the death of one of the parties to a divorce proceeding. If the law is to be otherwise, it is for the Legislature and not the courts to create such a right. When the Legislature enacted section 236 of the Domestic Relations Law, it could have so provided, but elected not to. The court can find no basis for concluding that the Legislature intended to include such a right (Governor's Memorandum of Approval, McKinney's Session Laws of N.Y., 1980, p. 1863; Assembly Memorandum in Support of Legislation).

Parenthetically, it is noted that while statutes such as EPTL 5-1.1 are liberally construed in favor of the surviving spouse (See Matter of Aaronson, 20 A.D.2d 133, 246 N.Y.S.2d 61) in the case of equitable distribution, a liberal construction here would not benefit the wife but only the beneficiaries of her estate.

The second question which must be addressed is whether a different conclusion should be reached where the surviving spouse intentionally causes the death of the deceased spouse.

The affidavit of Samuel Schwartz, dated July 11, 1986, concedes that the decedent was the victim of a homicide. The District Attorney has not charged anyone in connection with her death. The administrator of the estate of Mindy Sue Schwartz alleges that Samuel Schwartz was directly responsible for Mindy Sue's death or that he assisted in bringing about her death by facilitating access to the Woodmere residence. There are few cases which address the question of the right to equitable distribution where one spouse causes the death of the other.

In Jacobson v. Jacobson, 146 N.J.Super. 491, 496, 370 A.2d 65 the court determined that a wife's claim for equitable distribution did not abate where the husband was charged with causing her death. The court reasoned that it would be "wrong, unfair and grossly inequitable to permit the husband ... to thwart the intent of the legislature to grant married women rights in property which they never enjoyed before ..." (Jacobson v. Jacobson, supra, 370 A.2d at p. 68).

Similarly, in Howsden v. Rolenc, 219 Neb. 16, 360 N.W.2d 680 the court found that the general rule regarding abatement did not apply where the husband pleaded guilty to a charge of second degree murder in the death of his spouse. The court stated that public policy prohibits a person who commits a homicide from benefiting from the death of his victim, citing a Nebraska statute which codifies the principle. The court determined that the wife's motion to set aside part of the decree of dissolution to provide for equitable distribution and other relief, (commenced prior to her death), did not abate but rather survived for the purpose of determining whether she had been deprived of the right to equitable distribution.

However, in Segars v. Brooks, 248 Ga. 427, 284 S.E.2d 13 the right to equitable distribution was found to have abated where the wife was allegedly shot to death by her husband. The court reasoned that it should be presumed the parties might have reconciled.

In Drumheller v. Marcello, 351 Pa.Super. 139, 505 A.2d 305 equitable distribution was not permitted where the wife was killed by her husband while the proceeding was pending.

In Simpson v. Simpson, 473 So.2d 299 the wife was killed by her husband and the wife's attorney requested the court to divide the marital property so that her children could succeed to the mother's share. The court determined that the action for dissolution had terminated and division of the wife's property should be the subject of a separate probate proceeding.

There are many rules of construction which may be utilized in the interpretation and application of statutes (McKinney's Cons.Laws of N.Y., Book 1, Statutes, secs. 71-343). One rule is that the...

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9 cases
  • Peterson v. Goldberg
    • United States
    • New York Supreme Court — Appellate Division
    • June 8, 1992
    ...of a spouse entitled to equitable distribution. In support of his argument to the contrary, the husband relies upon Matter of Schwartz, 133 Misc.2d 1064, 509 N.Y.S.2d 729, mod sub nom., Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279. That case, however, is inapposite, as it merely st......
  • Radcliffe v. Radcliffe
    • United States
    • New York Supreme Court
    • December 16, 1987
    ...right to equitable distribution of marital property abated at the death of one of the parties to the proceeding (Matter of Estate of Schwartz, 133 Misc.2d 1064, 509 N.Y.S.2d 729 (Surr.Ct., Nassau Co., 1986)). Accordingly, with regard to any claims she may have as to personal property, she i......
  • Torres v. $36,256.80 US Currency, 91 Civ. 2436 (PKL).
    • United States
    • U.S. District Court — Southern District of New York
    • July 7, 1993 Under New York law, one spouse may validly own property separate and apart from the other spouse. See In re Schwartz, 133 Misc.2d 1064, 1065, 509 N.Y.S.2d 729, 731 (Surr.Ct. Nassau Cty.1986), rev'd in part, aff'd in part, 139 A.D.2d 640, 527 N.Y.S.2d 279 (1988); see also Governor'......
  • Estate of Schwartz, Matter of
    • United States
    • New York Surrogate Court
    • April 21, 1987
    ...alleges that Samuel Schwartz is responsible, either directly or indirectly, for the death of his wife. In a prior decision (133 Misc.2d 1064, 509 N.Y.S.2d 729), the court determined that the estate might have a viable cause of action for equitable distribution. It was concluded that althoug......
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1 books & journal articles
  • § 13.03 Miscellaneous Equitable Distribution Issues
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 13 The Divorce Action
    • Invalid date
    ...N.J. Super. 491, 370 A.2d 65 (1976). New York: Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279 (1988); In re Estate of Schwartz, 133 Misc.2d 1064, 509 N.Y.S.2d 729 (1986). Pennsylvania: Drumheller v. Marcello, 516 Pa. 428, 532 A.2d 807 (1987). [508] See Preece v. Preece, 682 P.2d 298,......

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