Opinion
May 27, 1999
Appeal from the Surrogate's Court, Bronx County (Lee Holzman, S.).
While the death benefit of which petitioner administratrix had been, prior to 1996, the beneficiary, was clearly a marital asset as to which the deceased had been enjoined by the April 16, 1993 pendente lite order of Supreme Court, Westchester County, from changing, the fact that the underlying matrimonial action was not, subsequent to the pendente lite order, pursued by either of the parties thereto, even though a trial conference was scheduled to be held two months from the order's issuance, leads us to conclude that three years hence, in 1996, when the decedent changed the beneficiaries of his death benefit, the, matrimonial action had long since been abandoned and there was, therefore, no longer any equitable rationale to sustain the temporary injunction issued to preserve the status quo ( see, Walker Mem. Baptist Church v. Saunders, 285 N.Y. 462, 474) during the pendency of that action. We find, then, that the pendente lite orders were no longer viable at the time the decedent designated beneficiaries other than the administratrix for his death benefit.
We note that the Surrogate did not make a determination as to what petitioner administratrix's elective share was, and, thus, the amount to be held in escrow should not be taken as any indication of how the elective share or the family exemption should be calculated ( see, EPTL 5-1.1, 5-3.1 Est. Powers Trusts [a] [5]).
Concur — Nardelli, J. P., Tom, Mazzarelli, Lerner and Buckley, JJ.