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