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 2: Surviving the Surviving Spouse

In New York, a person is considered a surviving spouse even if the marriage is subsequently annulled or voided.  This is particularly problematic where a sham marriage has occurred, such as when a caregiver marries a person with known dementia.   Under the current law in New York, even if the marriage was annulled after the death of the mentally incompetent spouse, the surviving spouse may still claim his/her right of election against the estate.  This may have the effect of nullifying the decedent's Will provisions or intestate distributions.

The issue is complicated in New York by the fact that there are several statutes that touch upon the issue of mental capacity and marriage.  Together they create a patchwork of referring statutes that nonetheless leave open the possibility that a surviving spouse from a voidable marriage may still take against the estate.

Domestic Relations Law §7 provides that a marriage contracted between two people where one person "is incapable of consenting to a marriage for want of understanding" is deemed "void from the time its nullity is declared by a court of competent jurisdiction."  In other words, such a marriage is voidable, that is, it remains valid until such time as a court declares it void.  When a court declares such a marriage void, then it has the effect of being void from its beginning.  Voidable marriages are distinguished in the law from void marriages, such as incestuous marriages.  These are considered void from the start, and require no judicial action to render them void. 

The Domestic Relations Law § 140 [c] provides that "[a]n action to annul a marriage on the ground that one of the parties thereto was a mentally ill person may be maintained at any time during the continuance of the mental illness, or, after the death of the mentally ill person in that condition, and during the life of the other party to the marriage, by any relative of the mentally ill person who has an interest to avoid the marriage"

Nevertheless,  EPTL 5-1.1-A defines a "surviving spouse" as having a right of election against the deceased spouse's estate "unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that: (1) A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage (. . .) was in effect when the deceased spouse died," or that in the instant case "(2) The marriage was void as incestuous under section five of the domestic relations law, bigamous under section six thereof, or a prohibited remarriage under section eight thereof " (EPTL 5-1.2 [a]).  There are no provisions that address what happens to the surviving spouse's right of election if the marriage is annulled by a court due to the diminished capacity of the deceased at the time of the marriage.

As Presiding Judge Prudenti noted in Campbell v Thomas (2010 NY Slip Op 02082 [2d Dept 2010],   "New York, however, does not yet have a statute specifically addressing a situation in which a person takes unfair advantage of an individual who clearly lacks the capacity to enter into a marriage by secretly marrying him or her for the purpose of obtaining a portion of his or her estate at the expense of his or her intended heirs. When a marriage to which one of the parties is incapable of consenting due to mental incapacity is not annulled until after the death of the nonconsenting party, a strict reading of the existing statutes requires that the other party be treated as a surviving spouse and afforded a right of election against the decedent's estate, without regard to whether the marital relationship itself came about through an exercise of overreaching or undue influence by the surviving party. On this appeal, we have occasion to consider whether the surviving party may nonetheless be denied the right of election, based on the equitable principle that a court will not permit a party to profit from his or her own wrongdoing."

In  Campbell v Thomas, New York's Second Department addressed the issue of mental capacity with respect to sham marriages.   In February 2001 Nancy Thomas left for a well-deserved one-week vacation, leaving the care of her 72 year-old Alzheimer-suffering father Howard in the care of Nidia Colon whom Nancy hired.  Unbeknowst to Nancy, Nidia married Howard during Nancy's vacation.  She then had valuable assets transferred into her name, specifically putting her name as joint owner of Howard's $150,000 bank account, and naming herself as sole beneficiary of Howard's New York City Teachers' Retirement System account then valued at $147,000.

Howard Thomas died in August 2001.  In November 2001 Nancy and her brothers Christopher and Keith commenced an action in Supreme Court asking that the court declare Nidia's marriage to Howard as null and void, as well as the subsequent transfer of assets.  In their pleadings, they alleged undue influence, conversion, and fraud and moved for summary judgment.  On October 1, 2004 the Supreme Court denied the plaintiffs' motion for summary judgement.  The Thomas children appealed.

The Appellate Court for the Second Department heard the appeal and found that the Thomas children had succeeded in demonstrating that Howard "lacked the capacity to understand his actions before his marriage, and that his mental state only diminished thereafter" (Campbell v Thomas, 36 AD3d 576, 576 [2007]).  The court reversed the Supreme Court and granted the plaintiffs' motion for summary judgment.  Further, the court sent back the matter to the Supreme Court "for the entry of a judgment declaring null and void (1) the marriage between the defendant Nidia Colon Thomas and the decedent Howard Nolan Thomas, (2) a change in beneficiary in Howard Nolan Thomas' Teacher's Retirement System of the City of New York account, and (3) a change in the ownership of Howard Nolan Thomas' Citibank accounts" (id.).  The Supreme Court so ordered on June 21, 2007.  Nidia Colon Thomas appealed.

In her appeal, Nidia alleged  that, under the applicable statutes, even if the marriage had been annulled, she was still considered the surviving spouse.  As such, she was entitled to the spousal elective share of Howard's estate.  Since the marriage to Howard had been annulled almost six years after his death, the strict application of the statutes in question would have resulted in Nidia having a claim to the greater of $50,000 or one-third of the net estate.

However, the court demurred from such a strict application of the statutes on the principles of equity and public policy, so that "(n)either in criminal nor in civil cases will the law allow a person to take advantage of his own wrong" (Diaz v United States, 223 US 442, 458 [1912], quoting Falk v United States, 15 App DC 446, 460 [1899]).  Due to her overreaching and undue influence in marrying Howard, the court denied Nidia the benefit of her marriage to Howard.  Through her conduct, the court found that she had forfeited any benefit that stemmed from her marriage so that she would not be unjustly enriched.

In my next installment, I will examine another case where the mental capacity of one spouse was the determining factor.  I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.