Divorce Then Death

estate attorneys on long islandSurrogate Robert Gigante sitting in the Surrogate’s Court of Richmond County, New York, recently had an unusual case come before him. A husband and wife had been involved in a divorce lawsuit in the Supreme Court. The parties had entered into a stipulation of settlement. The stipulation provided that both parties released and discharged their respective claims in each other’s estates and agreed to the distribution of real property owned by them. During the course of the Supreme Court divorce proceeding, the judge before whom the case was presented, ordered the wife was granted a judgment of divorce. The judge then directed the wife’s attorney to settle the judgment of divorce within sixty days or the divorce lawsuit would be deemed abandoned. Unfortunately, the wife died. Her attorney did not submit the judgment of divorce within the 60 day period pursuant to the judge’s instruction. The divorce was therefore deemed abandoned.

Probate Proceeding

A probate proceeding was initiated. The wife’s husband brought an application in the probate proceeding before Surrogate Gigante to have his rights determined. His position was the stipulation of settlement was not valid because the divorce proceeding was abandoned.

The wife’s sister brought an application to cause the Surrogate’s Court to enforce the terms of the stipulation of settlement. The stipulation had been signed by both parties prior to the wife’s death. The three children of the marriage also supported the sister with regard to her application to the Surrogate. Surrogate Gigante in his decision stated he could not render a decision on motions for summary judgment regarding these issues. (Each party had brought a motion for summary judgment claiming there was no issue of fact with regard to their being completely correct in their position).

Can the Stipulation in the Divorce Case Survive the
Abandonment of the Divorce Lawsuit?

Surrogate Gigante indicated in his decision issues of fact existed and there was a question whether the stipulation of settlement in the divorce case survived the “abandonment” of the divorce lawsuit. He questioned whether only a portion of the divorce action had been abandoned. He also raised the issue the husband could have been found to have ratified the stipulation of settlement by complying with its terms. Based on the aforementioned, Judge Gigante held this case would have to move towards a trial with regard to the various issues presented.estate planning and litigation assistance