- 9 - Kaplan, 82 N.Y. 2d 300, 307, 624 N.E.2d 565 (1993) (assignment of decedent’s pension benefits made in separation agreement incorporated into judgment of divorce was not made by court- ordered equitable distribution). Because the $50,000 payment was not made by award of the New York court, the limitation of N.Y. Dom. Rel. Law sec. 236B(1)(a) (“an award of maintenance shall terminate upon the death of either party”) is inapplicable. Petitioner, nevertheless, relies on the calculated ambiguity he created to establish that his obligation to make the $50,000 payment in the event of Marilyn’s death was fixed neither by the settlement stipulation nor by an “equitable distribution”, which, apparently, he believed would create a fixed obligation upon his divorce from Marilyn. Petitioner was perhaps a little too clever in his tactics. The settlement stipulation obligates petitioner to make the $50,000 payment and, although the amount of petitioner’s obligation depends upon the date on which Marilyn vacated a certain apartment, Marilyn’s survival is not set forth as a condition precedent to petitioner’s obligation to pay, nor has petitioner otherwise shown that such condition existed at the time he made the $50,000 payment. See Webb v. Commissioner, T.C. Memo. 1990-540 (language in New York separation agreement that husband “shall” pay sufficient to create a liability enforceable by ex-wife’s estate should she have died after the agreement and before payment); cf. Brower v. Brower, 653 N.Y.S.2d 386, 387-388 (App. Div. 1997) (intent important in determining whetherPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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