Hendel v. Hendel
| Decision Date | 19 March 1974 |
| Citation | 353 N.Y.S.2d 454,44 A.D.2d 532 |
| Parties | Edward HENDEL, Plaintiff-Respondent-Appellant, v. Arline HENDEL, Defendant-Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
S. Mildworm, New York City, for plaintiff-respondent-appellant.
B. Novick, New York City, for defendant-appellant-respondent.
Before NUNEZ, J.P., and KUPFERMAN, MURPHY, STEUER and MOORE, JJ.
Judgment, Supreme Court, New York County, entered June 3, 1969, unanimously modified, on the law, by deleting therefrom the third decretal paragraph of said judgment and as so modified the judgment is affirmed without costs and without disbursements.
In this conversion action for divorce, predicated on a prior existing judgment of separation, the third decretal paragraph of the judgment preserved to the defendant wife all rights of inheritance as well as all property rights that had heretofore inured to her benefit including her right as a tenant by the entirety in the real property owned by the parties. The granting of a divorce converted the tenancy by the entirety into a tenancy in common by operation of law and similarly divested the parties of their inchoate prospective rights of inheritance. Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510; Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513; Estates, Powers & Trusts Law § 5--1.2. Neither the common law nor the applicable sections of the Domestic Relations Law (§§ 234, 236) empower the Court granting a decree of divorce to change the operation of these provisions of law. Winter v. Winter, 39 A.D.2d 69, 331 N.Y.S.2d 747, affd. 31 N.Y.2d 983, 341 N.Y.S.2d 313; Dolphus v. Dolphus, 39 A.D.2d 829, 332 N.Y.S.2d 974.
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...Civil Practice-- EPTL § 6-2.1(7)(h)(i)). It is clear that all survivorship rights are necessarily extinguished (Hendel v. Hendel, 44 A.D.2d 532, 353 N.Y.S.2d 454 (1st Dep't 1974)). However, an exception exists when the parties were divorced by an ex parte foreign divorce Prior to Williams v......
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