- 6 -
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
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011