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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 whether
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