New York Law Journal, April 25, 2025 —
Our artificial intelligence overlords tell us that in America we have a “death-denying culture.” Translation: generally speaking, death is a topic that is presumptively uncomfortable, swept under the rug, and not talked about in this country.
When you draft a separation agreement in a matrimonial matter, you had better sweep the “death-denying” milieu under the rug. Instead, it is critical that matrimonial lawyers who draft separation agreements confront how we are going to address the possibility that one spouse could die after an agreement is signed, but before all its provisions are implemented.
If you ever needed proof of how important it is to get comfortable with the possibility of death when drafting separation agreements, look no further than Justice Joseph H. Lorintz’s recent decision in A.F. v. D.F., 2025 NY Slip Op 50160(U) (Sup. Ct., Nassau Cty., 2025).
In A.F., the parties were married in 1990, and they have three emancipated children. A divorce action was commenced by the wife in 2010 and settled pursuant to a Marital Separation and Property Settlement Agreement (“agreement”) in 2010. The parties were divorced by Judgment in 2010.
The agreement directed the division of the Husband’s pension via a Qualified Domestic Relations Order (“QDRO”). A QDRO was signed simultaneously with the Judgment which directed that the wife (the “Alternate Payee”) would receive survivorship benefits in the event of the husband’s (the “Participant”) death.
In 2011, the New York City Employees’ Retirement System (NYSCERS) sent a letter advising the husband that the “DRO is unacceptable in its current format,” including that the numerator (number of months of retirement credit earned during the marriage) was incorrect.
In 2024—more than a decade after the letter from NYSCERS—the husband filed an Amended Domestic Relations Order that was identical to the 2010 QDRO “except for the deletion of the ordered paragraph directing the [husband] to select a survivorship option.”