The estate of a spouse, whose decedent entered into a settlement agreement which distributed real property held as tenants-by-the-entirety, can find enforcement rebuffed if the decedent died prior to the judgment of divorce or transfer of the property. Notwithstanding contract doctrine to the contrary and the further absence of any catechistic statutory formulae, the Court of Appeals and the Appellate Division, Second Department, have made this area formula sensitive and unforgiving. The First and Third departments have parted with the Court of Appeals and breathed sensibility into this quicksand, which means a future date on the Albany docket.
‘Estate of Violi’
The separation agreement in In re Estate of Violi,1 the seminal decision, required that the marital residence, held as tenants-by-the-entirety, be sold within four years with an equal division of the proceeds, subject to the wife’s exclusive occupancy. The wife commenced an action for divorce but died before termination of the marriage or any sale. Her estate sought to recover her share of the proceeds.
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