Hendel v. Hendel

44 A.D.2d 532, 353 N.Y.S.2d 454, 1974 N.Y. App. Div. LEXIS 5438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1974
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered June 3, 1969, unanimously modified, on the law, by deleting therefrom the third decretal paragraph of said judgment and, as so modified, the judgment is affirmed, without costs and without disbursements. In this conversion action for divorce, predicated on a prior existing judgment of separation, the third' decretal paragraph of the judgment preserved to the defendant wife all rights of inheritance as well as all property rights that had heretofore inured to her benefit including her right as a tenant by the entirety in the real property owned by the parties. The granting of a divorce converted the tenancy by the entirety into a tenancy in common by operation of law and similarly divested the parties of their inchoate prospective rights of inheritance. (Stelz V. Shreck, 128 N. Y. 263; Gleason v. Gleason, 26 N Y 2d 28; EPTL 5-1.2.) Neither the common law nor the applicable sections of the Domestic Relations Law (§§ 234, 236) empower the court granting a decree of divorce to change the operation of these provisions of law. (Winter v. Winter, 39 A D 2d 69, affd. 31 N Y 2d 983; Dolphus v. Dolphus, 39 A D 2d 829.) Concur — Nunez, J. P., Kupferman, Murphy, Steuer and Moore, JJ.