Determining a Decedent's Domicile for Probate in New York

Most people assume that their home is their legal domicile, but the issue of legal domicile is much more complicated than that.  Establishment of a person's domicile depends upon the nature of the person's contacts with the State, an intent to domicile in the State, the mental capacity to form that intent to domicile in the State, and the location of a person's tangible assets.  If this sounds very much like what is required to establish a contract in New York, it's because the establishment of a domicile in New York is an implicit contract between an individual and the State that grants the State jurisdiction over the individual and his/her tangible assets.  When a person dies, the Surrogate's Court in the county in which the decedent dies or the situs of the tangible assets then has jurisdiction over the estate for the purposes of probate or administration.  For a domicile to be established, there must be a "union of residence and intention" [Matter of Urdang, 194 AD2d 615, 615–16 (2d Dept. 1993)], which requires the same mental capacity as is required to sign a contract.

Residence and domicile are not the same thing.  A person may have several residences but only one domicile.  "Residence is necessary to establish a domicile but it is not controlling unless there is the intention of making that place one of permanent abode and adopting it as the domicile. Change of residence from one place [to] another is strong evidence of an intention to change place of domicile but standing alone is insufficient and while a person may have two places of residence, he may have only one domicile." [In re Knowlton’s Will, 192 Misc. 1032, 1038 (Sur. Ct. 1948)].  Domicile is defined as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return”  [SCPA § 103(15)].  To change domicile then requires provable acts and intentions on the part of an individual that will effectively remove that individual from the jurisdiction of the State.  "The law is well settled that an existing domicile continues until a new one is acquired. It is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence. To meet this burden, the movant must establish the decedent’s intention to effect a change of domicile from her acts, statements, and conduct [Matter of Pingpank, 134 AD2d 263, 265, 520 N.Y.S.2d 596)].  The legal standard of proof of clear and convincing evidence can be a difficult standard to satisfy.

In re Will of Ann Matarazzo [72 Misc.3d 1214(A)], the question before the court turned on the issue of domicile as to whether the Orange County Surrogate had jurisdiction to probate a 2014 Will executed in New York, or whether a New Jersey court had jurisdiction to probate a later 2015 Will.  Decedent had two sons; the elder son resided in Washington, New Jersey while the younger son resided in Greenwood Lake, New York.  Decedent and her husband had resided and been domiciled in Malverne, New York.  The younger son moved in with his parents to care for his parents beginning in 1986.  The father died in 2009.  In 2010, the decedent moved in with the older brother in New Jersey, and the younger son married for the first time and moved back to Greenwood Lake.  In 2015 the decedent sold her home in Malverne and continued to live in New Jersey.  Then in 2018 the decedent moved into a nursing home in Pennsylvania that cared for those suffering from Alzheimer’s disease and/or dementia, having never repurchased another home.

Was the decedent's move to New Jersey "temporary" or was her residence in New Jersey from 2010 to 2018 continuous and exclusive?  Were weekend visits to Greenwood Lake sufficient to show her intent to remain a New York domiciliary?  Did the fact that she used the Greenwood Lake address on her tax forms, financial accounts, benefit accounts, etc., and by paying New York State income taxes while she resided in New Jersey evince her desire to remain a New York domiciliary?

Moreover, there were facts in evidence to show that the decedent may have been suffering from dementia as early as 2013.  Decedent would not have had the mental capacity to legally change her domicile after 2013 because she could not form the intent.  And even if a court-ordered guardian had been appointed for the decedent under Article 81 of the Mental Hygiene Law, the guardian would only have had the power to change the ward's residence but not her domicile without a court order [In re Guardian & Prop. of Lillian, 20 Misc 3d 215, 216–17 (Sup. Ct. 2008), rev’d sub nom. In re Lillian U., 66 AD3d 1219 (3d Dept. 2009)].  

The Surrogate did not opine as the the validity of either the 2014 or 2015 Wills, or the purported  diminished capacity of the testator.  Rather, the Surrogate asked both parties to provide evidence that would definitively establish the decedent's domicile at a hearing on that question before the court would decide on the threshold question of jurisdiction.

The question of domicile must remain front and center in the mind of a testator even after a Will has been properly executed.  The threshold question of domicile could derail even the most well-though out estate plan if the estate plan is dependent upon the jurisdiction of a particular State.

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Mental Capacity and Marriage in New York, Part 3: The Secret Marriage

Marriage fraud has always had as a consequence the disruption of family estate planning, or even the potential of an unfair result where the state's intestate laws are applied when the decedent dies without a Will.  But if the bride or groom suffers from dementia and their fiance(e) has been in a caregiver position, the resulting marriage could be considered a form of elder abuse because the person suffering from dementia is being exploited for financial reasons.

Consider the case in Matter of Berk, 2010 NY Slip Op 02139 [2d Dept 2010]).  Irving Berk was a very successful businessman, having founded the Berk Trade and Business School.  In 1982, he executed a Will naming his sons Joel and Harvey as co-executors.  Over the next few years, Irving's memory began to fail.  His physical health also deteriorated, and he became wheelchair bound.    In 1997 his sons decided to hire a live-in caregiver. At the time, Irving Berk was 91 years old.  His caregiver, a recent immigrant from China named Hua Wang (also known as Judy Wang), was 40 years old.

Friends of Irving reported that Wang took advantage of Berk's increasing dependency on her, and that she physically and verbally abused him.  By 2005 Irving Berk could no longer recognize his sons who by then were contemplating guardianship proceedings.   As part of this process, Irving was examined in April 2007 by a physician who diagnosed him as having dementia and stated that Berk did not possess the mental capacity to enter into contracts.  His family physician who examined him a short time later found that Irving did not have the mental capacity to handle his social affairs.

Nevertheless, on 17 June 2005 Irving Berk and Judy Wang were married in the civil ceremony in the New York City Clerk's Office.   The marriage was kept a secret.  Neither Berk nor Wang wore wedding bands thereafter, nor did family and friends ever witness displays of affection between them.

On 16 June 2006, Irving Berk died leaving an estate worth more than $5 million.  The day before the funeral, Wang informed his sons of the secret marriage as they drove to the funeral home.  When the Will was read, it was discovered that Irving Berk had never changed his Will to make his new wife a beneficiary.  The named beneficiaries remained his two sons and four grandchildren.  Because Irving had made no provision for his new wife in the Will, Judy was now entitled to ask for the elective share. 

On 29 December 2006, after the Will was filed for probate and within the requisite six months after the Will was probated, Judy Wang Berk petitioned the Surrogate's Court in King's County for a determination of her right to take her elective share as Irving's surviving spouse.  Under New York law, the surviving spouse is entitled to $50,000 or one-third of the decedent spouse's estate, whichever is greater.   The Surrogate found that Judy was married to the decedent at the time of his death and that, as a matter of law, she was entitled to her elective share under EPTL 5-1.1-A [a].

Berk's sons appealed.  The Appellate Division, Second Department found that Judy Wang had married Irving Berk in the full knowledge that he lacked the mental capacity to consent to a marriage.   Under the principles of equity, the court found that Wang should thus not be unjustly enriched because she took unfair advantage of Berk's mental incapacity at the time of their marriage.

Over 5 million people are affected by Alzheimer's disease and other forms of dementia, and this number is expected to grow.  The time is now to protect your assets and your loved ones.  You cannot afford to wait for a diagnosis because once you have been diagnosed with dementia, your diminished mental capacity will prevent you from taking the necessary legal steps to protect yourself, your property, and your family.

What can you do to protect yourself?  Irving Berk had a Will, after all.  A Will is certainly a good first step, but it is not enough.  Unless the Will has been carefully drafted by an attorney to make sure that it is in compliance with New York Law and contains the necessary language about the elective share so as to mitigate against unscrupulous persons, then the door is left open for a sham marriage or other forms of unjust enrichment to occur.  Do-it-yourself online wills should be used with extreme caution or not at all as a result.

Secondly, you should meet with your attorney at least once a year in the same way that you meet with your doctor for your annual physical exam.  Your attorney will ask you questions to determine what has changed in your personal and legal affairs, and may suggest redoing your Will or adding a codicil based upon your responses.  Your attorney will also evaluate your mental capacity as you answer the questions.  If the attorney determines that there is a doubt about your mental capacity, then your attorney will strongly advise that any codicils or new Will be videotaped during the execution ceremony.  This service is worth its weight in gold.

Next, your attorney may suggest that you place you assets into a trust.  If you go this route, you may want to execute a pour-over Will, meaning that your assets will go directly into the trust at the time of your death, to be administered according to the terms of the trust.  Remember that assets such as bank accounts and property that can be held jointly are vulnerable to sham marriage schemes.  You may want to re-title these in the name of the trust.  Note that trusts are contracts, and that contracts require the highest level of mental capacity in New York.  If you wait too long, you may not have the requisite mental capacity to execute the trust documents.

You will also need full mental capacity to give a durable power of attorney to someone you trust or to your bank so that your affairs can be managed should you lose mental capacity.  Your attorney will discuss these options with you in detail so that you comfortable with your choices.

Finally, your attorney will review your planning for medical decision-making including having a living Will and a health care proxy.  These are known as advance directives.   The case does not disclose whether Irving Berk had these instruments in place.  If he did not, Judy Wang Berk as his legal wife would have been the one to make the decisions about his health care, and not his sons.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation  simply by filling out this contact form.   I will get back to you promptly.

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