Alec Jeffrey Megibow - Page 6

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                  On brief, respondent concedes that the $50,000 payment                                
            satisfies the first three subparagraphs of section 71(b)(1).  The                           
            parties agree that the only issue is whether the $50,000 payment                            
            satisfies subparagraph (D), i.e., whether petitioner’s liability                            
            to make the $50,000 payment would have survived the death of                                
            Marilyn.                                                                                    
                  C.  Discussion                                                                        
                        1.  New York Domestic Relations Law                                             
                  To determine whether the $50,000 payment would survive the                            
            death of Marilyn, we must look to the law of New York.  See                                 
            Morgan v. Commissioner, 309 U.S. 78, 80 (1940) (“State law                                  
            creates legal interests and rights.  The federal revenue acts                               
            designate what interests or rights, so created, shall be                                    
            taxed.”).  In New York, actions for a divorce are classified as                             
            “matrimonial actions” and, with respect to matrimonial actions                              
            commenced after July 19, 1980, are governed by part B of section                            
            236 of the Domestic Relations Law.  N.Y. Dom. Rel. Law sec. 236B                            
            (McKinney 1986).  Under the Domestic Relations Law, the parties                             
            to a matrimonial action may, by agreement, provide for (1) the                              
            division or distribution of separate and marital property and                               
            (2) the amount and duration of maintenance.  N.Y. Dom. Rel. Law                             
            sec. 236B(3).  If they have not so agreed, the court may order                              
            maintenance and determine the respective rights of the parties in                           
            their separate and marital property.  N.Y. Dom. Rel. Law sec.                               
            236B(5)(a).  To aid the court in determining the respective                                 




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