DIVORCE - ARE ASSETS IN TRUST SUBJECT TO EQUITABLE DISTRIBUTION

Markowitz v. Markowitz, 2017 NY Slip Op 296 - NY: Appellate Div., 2nd Dept. 2017:

"The defendant correctly contends that the Supreme Court erred in awarding the plaintiff the cash surrender value of the subject Massachusetts Mutual Life Insurance policy (hereinafter the policy). The policy is held by the 1995 Jeffrey S. Markowitz Irrevocable Trust. While marital assets placed in a trust may be subject to equitable distribution (see Domestic Relations Law § 236[B][5]; Riechers v Riechers, 267 AD2d 445), the trust here is irrevocable, and neither party is a trustee with the power to transfer control of the trust assets. Accordingly, the trust assets are unavailable to either party. The defendant's contention that the trust has been implicitly revoked is without merit (see EPTL 7-1.9[a]). Accordingly, the policy should not have been included in the distributive award (cf. Wortman v Wortman, 11 AD3d 604, 607)."