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Surrogate Court Decides that Divorce is Final Prior to Husbands Death

Posted by Arnold A. Arpino | Aug 21, 2015 | 0 Comments

Surrogates Court, Dutchess County

Surrogate Justice James Pagones

Decided: August 18, 2015

In the Matter of Probate Proceeding, Will of John David E.  (Index Number Redacted)

A judge in Dutchess County has ruled that although a judgment of divorce was not finalized, the fact that  "The only action left, to finalize the divorce, was the mere ministerial act of signing the findings of fact, conclusions of law and judgment of divorce," meant that the parties were divorced for "all intents and purposes." Cornell v. Cornell, 7 NY2d 164, 169-70 [1959]

Justice Pagones was also the Acting Supreme Court Justice during the pendency of the matrimonial action which lasted for over two years.  On May 27, 2015 before Judge Pagones, the parties settled the matrimonial action on the record.  A 23 page stipulation of settlement was "So Ordered" by Pagones on that same date.  The parties were to submit findings of fact, conclusions of law and a judgment of divorce on or before July 29, 2015.  Only July 20, 2015 John David E. died. 

The Petitioner, the decedent's former spouse was seeking preliminary letters testamentary for the Estate of John David E pursuant to SCPA §1412.

Justice Pagones denied the request in light of a clause in the stipulation of settlement whereby both parties released and waived any estates rights and by virtue of EPTL §5-1.4(a)

About the Author

Arnold A. Arpino

Managing Shareholder focusing on Creditor's Rights, Real Estate, & Non-Taxable Estate Planning.

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