Surrogate Malave-Gonzalez ESTATE OF BERNARD WOOD, Deceased (16-2396/B) — In this contested probate proceeding, the decedent’s son moves for an order (i) enforcing a certain stipulation of settlement in a divorce action between the decedent and his surviving spouse, the petitioner herein; (ii) declaring that under such stipulation the spouse has no right to receive any share of the decedent’s estate; and (iii) directing that if SCPA 1404 hearings do not occur by a date certain the probate petition will be dismissed. The petitioner opposes the son’s motion. Background The decedent died on August 1, 2016, survived by a spouse (hereinafter the “Petitioner”); two daughters; and a son (hereinafter the “Movant”). The Movant is not the Petitioner’s son. There are two competing proceedings in this estate. By a petition filed on October 25, 2016, the Movant seeks to receive letters of administration (File No. 2016-239). Subsequently, the Petitioner commenced the instant proceeding (File No. 2016-239/B) to probate a purported will which appears to have been executed on July 3, 2002 and names her as the estate’s executor and sole beneficiary. The administration proceeding is being held in abeyance pending the outcome of this probate proceeding. While each of the daughters consent to the Petitioner’s application, the Movant does not. Previously, he moved for an order of summary judgment dismissing this proceeding, which was denied by the court’s decision dated July 18, 2019. That order also directed the parties to proceed with SCPA 1404 examinations, to be taken by personal appearance. To date, those examinations have not been conducted. The Stipulation and Divorce Action The motion centers around a divorce action that the decedent, as plaintiff, commenced against the Petitioner, as defendant, on or about December 14, 2009 in the Supreme Court, Bronx County, bearing Index No. 12305/09. In that proceeding, the parties, who were each represented by counsel at the time, entered into a stipulation of settlement (hereinafter, the “Stipulation”) that was fully executed on January 17, 2015. The decedent, however, died prior to a judgment being entered in the divorce action. The Stipulation provides, inter alia, that the Petitioner is to receive maintenance and an interest in the decedent’s pension benefits. Particularly relevant to the matter at bar are the Stipulation’s provisions allowing the decedent to retain exclusive occupancy and possession of the marital residence, a two bedroom condominium located at 1410 Wood Road, Unit MB, Bronx, New York (hereinafter, the “Condominium”), which was titled in the name of the decedent and the Petitioner as tenants by the entirety. According to the parties, the Condominium is the estate’s only asset. Under the Stipulation, the Petitioner was obligated to transfer her title in the Condominium to the decedent by a quitclaim deed, after which the decedent would refinance the mortgage on the property in his name only. The parties further agreed that consideration for this transfer of ownership would be sixty monthly payments of $366.00 (hereinafter, “Condominium Payments”), commencing on the Stipulation’s execution date. To date, the Petitioner continues to reside in the Condominium. She has not conveyed the realty to the decedent or his estate. According to the Petitioner, she never received any Condominium Payments from the decedent. THE MOTION The request for declaratory relief The Movant’s attorney, who also represented the decedent in the divorce action, argues that the Stipulation is enforceable despite the decedent dying prior to the entry of the divorce judgment. According to counsel, all of the matters in the divorce action had been resolved prior to the decedent’s death, and what only remained to be completed was the entry of final judgment of divorce entered in the Supreme Court. Moreover, counsel contends that the decedent, partially performed his obligations under the Stipulation, conveying benefits which the Petitioner accepted. As such, the parties conduct constituted a ratification of the Stipulation. In opposition, the Petitioner’s counsel argues that the Stipulation is not enforceable for two reasons. First, she asserts that because the decedent died prior to the entry of a judgment of divorce, the divorce action abated and the Stipulation executed in contemplation of the divorce is unenforceable. Second, counsel posits that the Stipulation is ineffective because the decedent failed to make any Condominium Payments and he only partially paid the spousal maintenance required under the Stipulation.
It is well settled law that when a party to a divorce action dies prior to entry of a final judgment of divorce, the action abates because the marital relationship between the parties no longer exists (Matter of Forgione, 237 AD2d 438 [2d Dept 1997]). While an exception to this rule exists where the court has made a final adjudication of divorce but has not performed the “mere ministerial act of entering the final judgment” (Cornell v. Cornell, 7 NY2d 164, 169-170 [1959]; Matter of Rivera, 130 AD3d 932 [2d Dept 2015]), the record at this juncture does not support a finding that this exception is applicable here. Nonetheless, even if the divorce action abated due to the decedent’s death, the Stipulation would still be binding if the parties intended it to be an enforceable agreement upon its execution (see Matter of Germain, 2017 NY Misc LEXIS 3158 [Surr Ct Nassau Cty 2017]). The court’s reading of the Stipulation’s clear and unambiguous language leads to the inescapable conclusion that it was intended to be an immediately enforceable contract between the parties. The Stipulation provides that the parties entered into the agreement to resolve “…all of their respective rights, remedies, privileges and obligations to each other arising out of their marriage obligations to each other…which shall be fully described and bounded thereby, fixing now and forever their rights therein” (Stipulation, page 2). Both parties agreed to “the matter being placed on the uncontested matrimonial calendar for a divorce…” (Stipulation, page 4). And Article VIII of the Stipulation directs, inter alia, that the Petitioner will transfer sole title to the Condominium so he can “immediately” refinance its mortgage, and that as consideration thereof the decedent should electronically deposit monthly payments of $366.00 into the Petitioner’s checking account in consideration thereof “commencing on the date the instant stipulation is executed”(Stipulation, page 8). Finally, Article XXVI of the Stipulation states that it shall survive and not be merged in any judgment of divorce (Stipulation, page 20).
