Competing obituaries gave a hint of the family conflict that would emerge full blown after the 2009 death of Rear Admiral Peter DeMayo, U.S. Navy (Ret.), of Alexandria.
In one notice in The Washington Post, both of DeMayo’s wives are identified, as well as two daughters from his first marriage, which ended in divorce. DeMayo had separated from his second wife, Melanie, the obituary said.
Two weeks later, a second obituary appeared, with more details about Mayo’s second wife and their family, and no mention of any separation from Melanie. There is only a passing reference to “other surviving family members.”
The tension apparent in the successive obituaries is understandable. When Peter DeMayo died unexpectedly Dec. 11, 2009, he still was married to Melanie. The next day, Peter’s daughters from his previous marriage, Mandy and Pam DeMayo, broke into Peter’s home, took several items, and changed the locks. Police were called. Melanie’s lawyers responded with threats of criminal prosecution for trespass. The locks were changed again.
For their part, the daughters accused Melanie of improperly removing items from the house and wrongfully laying claim to most of Peter’s estate, despite provisions of his will leaving half to the daughters.
With two Alexandria properties at stake worth about $2 million, by one lawyer’s estimate, it was a family fight destined to be resolved by the courts. In June, Alexandria Circuit Judge Lisa B. Kemler ruled that the properties, held as tenancies by the entirety, passed to Melanie on Peter’s death.
Only married couples can hold property in a tenancy by the entirety. This status allows them to protect property against the creditors of one spouse.
Although Melanie and Peter’s separation agreement said they planned to sell the two properties and split the proceeds equally, the PSA did not set a time frame for the sale. The agreement also expressed the parties’ intention to get back together.
The Supreme Court of Virginia last month refused to hear an appeal of Kemler’s decision, finding “no reversible error.”
When a married couple owns property as a tenancy by the entirety, the title includes a right of survivorship, meaning ownership passes to the surviving spouse immediately upon the death of the other.
The seeds of the DeMayo dispute were sown in 2007, when Peter and Melanie decided to resolve the terms of their decision to live apart. Their relationship was “stormy,” but “they were trying to work things out,” as one lawyer put it. They hammered out a property settlement agreement, later incorporated into a decree of separate maintenance.
Unlike many PSAs, the DeMayos’ agreement did not contemplate a permanent split. It stated the couple had “no aspiration or anticipation for divorce.” They still intended to “communicate and spend time together” in an effort to “restore their marital relationship.”
The agreement indicated the DeMayos wanted to settle their property rights and agree on terms for division of all property. They had previously lived together at 500 Virginia Ave. in Alexandria, a two-story brick home assessed in 2007 at $1.37 million. Melanie had moved out, Peter stayed.
The couple agreed “they shall make the house ready for sale and place it on the market for sale at the earliest convenient time,” according to the PSA. “Upon the sale of said property, the parties shall divide the net proceeds from the sale equally.”
The DeMayos also owned a condominium as an investment property. The 5th floor unit at Alexandria House on Madison Street was assessed at nearly $400,000 in 2007. The couple agreed that, on “final dissolution of their marriage,” the condo would either be sold or purchased by one from the other. If sold, the net equity would be divided equally, the PSA stated.
In 2008, Peter executed a will leaving half of his estate to his daughters, Mandy and Pam.
Following Peter’s death in 2009, the parties staked out their positions. Melanie DeMayo, represented by Raighne C. Delaney of Arlington, asserted that, because the properties never had been sold, they passed to her when Peter died.
The DeMayo daughters, represented by John F. Rodgers of Alexandria, claimed the titles to the properties were converted from tenancies by the entirety to tenancies in common when the court entered the decree of separate maintenance. They demanded a deed for one-half of the real property.
The daughters filed a complaint asking for partition of the properties, with copies of the PSA, the decree, and the will attached. Melanie filed a demurrer. Kemler heard arguments from counsel on June 9.
Delaney argued on Melanie’s behalf that the couple’s plans to sell the properties were conditional, to be fulfilled at a mutually convenient time. “[T]hey never found a mutually convenient time,” he said.
“[T]hese people intended to live their lives together to the best that they could hoping for a full and complete reconciliation, which was interrupted by his death,” Delaney told the judge. “Now, the legal significance of that point is that she owns the two real properties free and clear.”
In response on behalf of the DeMayo daughters, Rodgers argued the PSA, incorporated into the court’s decree, operated to change the status of the titles to the properties to a tenancy in common, without the right of survivorship. “[T]heir agreement to divide the proceeds severed the tenancy by the entirety,” Rodgers said.
He pointed to the language referencing the condo, saying “final dissolution of the marriage” was meant to include the death of a spouse.
Kemler issued her opinion letter on the same day as the hearing, finding the PSA did not create an equitable conversion that ended the tenancy by the entirety. She dismissed the daughter’s claims to half of the real estate.
The Supreme Court refused to grant a writ of appeal.
That decision surprised Rodgers. “It’s one of those situations where I would have thought that the Supreme Court would have welcomed the opportunity to weigh in on it,” he said.
Rodgers declined to rehash his legal points in detail. “I think the family members are looking to put their lives together again at this point,” he said. “I don’t want to stoke the fires.”
Delaney said the lesson for lawyers drafting PSAs is to consider the possibility of the death of one of the spouses. If you want to dissolve a tenancy by the entirety, you can have a PSA say so. “If you don’t say that, you’re running the risk there hasn’t been an equitable conversion of the title into a new form,” he said.