In Waxman v. Waxman, 84 Mass.App.Ct. 314 (September 30, 2013), the Court affirmed two decisions of the Superior Court and addressed the distribution of assets upon the death of a party to a divorce proceeding during the pendency of the proceeding. The Court affirmed the summary judgment ruling with respect to the assets that the decedent held with his estranged wife as tenants by the entirety and as joint tenants, ruling that such assets passed to her by common law right of survivorship upon the decedent’s death, because there was no agreement between the parties overriding this right.
The Court also affirmed the summary judgment ruling regarding the decedent’s IRA, ruling that the decedent did not violate the automatic restraining order under Supplemental Probate Court Rule 411 as a matter of law when the decedent changed the beneficiary designation on his IRA three days prior to the filing of the complaint of divorce and before the automatic restraining order took effect. The record indicates that the decedent’s wife failed to raise at trial the issue of fact regarding the decedent’s state of mind when he changed the beneficiary designation on his IRA (i.e. whether the decedent intended to evade the automatic restraining order by changing the beneficiary designation shortly in advance of filing for divorce), so this issue was not preserved for appeal.