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Does a Matrimonial Action Abate Upon the Death of a Party?

On occasion, where the financial stakes are high between the surviving spouse and the decedent's estate, the issue of whether an action has abated as a matter of law has been litigated.


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As a general rule, the death of one party during the pendency of a divorce action causes the action to abate because the martial relationship between the parties sought to be dissolved no longer exists. See Cornell v. Cornell, 7 NY2d 164, (N.Y. 1959), motion to amend remittitur granted, 7 NY2d 987 (N.Y. 1960). The rationale for this rule is that the cause of action for a divorce is personal to a party. See Peterson v. Goldberg, 180 AD2d 260 (2nd Dept. 1992).

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