One tenet of matrimonial law that is drilled into law students — at least in New York — is that a divorce action abates upon the death of a party. While abatement of a divorce action does occur upon the death of a party, the courts have found some wiggle room around the edges.
The case most commonly cited when trying to squeeze around the abatement tenant is Cornell v. Cornell (7 NY2d 164 ). In that case, the final adjudication in the divorce action occurred while both parties were alive. The only remaining action was the entering of the judgment of divorce. The Court of Appeals determined that the divorce judgment could be entered because, “all that remained was the mere ministerial act of entering the final judgment to conform to the adjudication of the substantive rights of the parties which had already been made and was expressed in the decision of the court and the interlocutory judgment that were already on the record,” Id. at 170.
In other words, the court still had jurisdiction to enter the judgment nunc pro tunc. Two recent cases brush up against the “abatement at death” issue: Pelcher v. Czebatol (98 AD3 1258), a 2012 Fourth Department case, and A.V.B v. D.B. (985 NYS 2d 840), a 2014 case from the Westchester County Supreme Court.
In Pelcher, Diane Czebatol, plaintiff in the divorce action, died during the pendency of the appeal. The executor of her estate, her mother, was substituted as plaintiff. Reading the Pelcher decision from the Appellate Court, one gets the impression that the divorce action was still pending when the plaintiff died and her mother substituted, thus in conflict with the “abatement at death” principle.
However, the plaintiff’s counsel, Seema Ali Rizzo, explains that the judgment of divorce had been entered by the Supreme Court prior to Ms. Czebatol’s death. The issue in Pelcher was the defendant’s appeal of the Supreme Court’s grant of summary judgment in favor of the plaintiff, crediting her with $149,500 for her separate property contribution to purchase of the marital residence. Consequently, in Pelcher, the Fourth Department simply affirmed the lower court’s interlocutory order, which had become part of the divorce judgment entered during the parties’ lives.
In contrast, A.V.B. v. D.B. does involve an attempt by one party to continue the divorce action following the death of the other. In this case, during pendency of the divorce, the plaintiff had changed the named beneficiaries on her life insurance policies.
On one, she changed from naming the defendant as sole beneficiary to naming each of parties’ two children as 50 percent beneficiaries. On the other she changed the defendant from sole beneficiary to 1 percent beneficiary and named one child as 49 percent beneficiary and the other child as 50 percent beneficiary. The plaintiff’s actions were in clear violation of the automatic orders which apply during pendency of a divorce.
After the plaintiff’s death by suicide, during administration of her estate, the change of beneficiaries came to light. The defendant submitted a proposed order to the court reversing the plaintiff’s change of beneficiaries on her insurance policies. The attorney for the plaintiff’s estate consented to the entry of the proposed order. Upon direction of the court, the defendant then submitted an order to show cause for the requested relief.
The defendant claimed that the court retained jurisdiction to grant the motion based on two theories: That the parties’ stipulation to grounds prior to the plaintiff’s death allowed entry of the divorce as a “mere ministerial act;” and that because the plaintiff’s suicide was a deliberate intentional act, the divorce action did not abate and that the relief sought was an ancillary issue that could be addressed under Peterson v. Goldberg (180 AD2d 260 [2d Dept. 1992]).
Peterson allowed equitable distribution of marital assets as ancillary relief following the death of a party after entry of a foreign divorce. The trial court rejected both arguments and held the divorce action abated upon the plaintiff’s death, thus the court lacked jurisdiction to enforce the automatic orders.
The decision’s detailed analysis of New York cases permitting at least some aspects of a divorce action to continue after the death of a party provides worthwhile material to matrimonial and estate lawyers faced with this issue.
Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.