Kowalski v. Rosenbaum
Kowalski v. Rosenbaum
Opinion of the Court
Lorraine Kowalski appeals an order confirming a special master's report in the probate proceedings of her deceased husband's estate. We affirm the order confirming the special master's findings and conclusions, but we write to discuss Kowalski's claim that certain money was not subject to probate because it was held by her and the decedent as tenants by the entireties.
Kowalski and the decedent were still married but had been separated for approximately sixteen years at the time of the decedent's death in 2015. In a will executed prior to his death, the decedent left the majority of his estate to his long-term, live-in girlfriend. Kowalski sought an elective share of the estate. A special master was appointed to determine critical issues, and the special master found, among other things, that Kowalski was in possession of money that belonged to the decedent's estate. Specifically, the special master found that the Kowalskis had received $3,445,066 from the sale of their business real estate in 2006 and that one half of that amount ($1,722,533) belonged to the decedent. He had received $1,008,547 during his life, and the remaining amount of $713,986 was now due to his estate. The special master ordered Kowalski *965to tender the money to the estate. The trial court confirmed the special master's report.
On appeal, Kowalski argues that the trial court erred in approving the special master's report because the money was held by her and the decedent as tenants by the entireties and was therefore not subject to probate upon the decedent's death. She contends that a presumption of tenancy by the entireties arose regarding the remaining proceeds from the sale of the couple's business real estate and that there was no evidence rebutting that presumption.
"A unique aspect of a tenancy by the entirety is that each spouse is 'seized of the whole or the entirety, and not of a share, moiety, or divisible part.' " Sitomer v. Orlan,
When a married couple holds money in a jointly-titled bank account, a rebuttable presumption arises in favor of a tenancy by the entireties, unless the terms of the account expressly disclaim the tenancy by the entireties form of ownership. See Beal Bank, SSB,
There was no dispute that the business property that was sold constituted marital property. Generally, "[t]he proceeds from the sale ... of tenancy by the entireties property are also held as a tenancy by the entireties and are owned in total by both the husband and the wife." Passalino v. Protective Grp. Sec., Inc.,
At the hearing, Kowalski testified that she "hung on [to] those moneys" and that in her mind, she did not "divide that amount, one-half for [the decedent], one-half for" herself. She also testified that the decedent "did not expect everything to be cut down the middle." She testified that the decedent did not have control over the money; he would come to her when he needed money. At the time of his death, *966the decedent had received a little over $1,000,000. Kowalski also testified that if the decedent had lived and had continued to ask for money, she would have
wanted answers and money from him, so it came out equal. I would have wanted all of it be figured out as a lump sum. Take the proceeds of the sale of the land and the proceeds of the sale of the inventory and the equipment and then figure out the 50 percent.
She also testified that she began to get concerned after he had asked for amounts reaching a total of $1,000,000.
Based on the testimony given by Kowalski, the special master did not err in finding that she and the decedent did not own the money as tenants by the entireties at the time of his death. While her initial testimony suggested that she and the decedent were not intending to split the money down the middle, her subsequent testimony more clearly explained that she believed that each of them owned fifty percent of the funds. Such testimony indicates that the parties were not intending to each own the whole of the money but rather that they each intended to own a divisible part of the money, and it is consistent with the fact that they had separated and were living separate lives. Further, the entireties character of property is terminated when one of the parties maintains sole control and the other party can no longer exercise control over the property. See Passalino,
Affirmed.
VILLANTI and ATKINSON, JJ., Concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.