Alec Jeffrey Megibow - Page 9

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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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