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Are you or someone you love in a same-sex marriage?

Are you or someone you love in a same-sex marriage? Justice Thomas made it clear today that the next rights in the Supreme Court’s crosshairs include marriage equality. Let’s have a conversation now to protect you, your spouse and your family. For a free 30-minute consultation, go to #supremecourt #marriageequality

This is Estate Planning Awareness Week! Tip #5

Today’s Tip:  When a Contentious Probate Litigation Leads to a Disadvantageous Result


As is often the case, probate litigation can quickly become contentious, especially when competing Wills are offered for probate.  Litigation can become costly, and disadvantageous errors in judgment and strategy can result in unintended consequences. Read more here.

#attorneydraftedwill #estateplanning #lastwillandtestament, #lostwill #revocation #selfprovingaffidavit #survivingspouse #testamentarycapacity #willrevocation #wills #willscontests

This is Estate Planning Awareness Week! Tip #4

Today’s Tip:  Setting Up a Living Trust for a Non-Citizen: Linda McCartney’s Trust for Paul McCartney as a Model

Because Linda McCartney retained her U.S. citizenship, set up the QDOT trust to benefit Paul, and had her Will probated in New York, Sir Paul was able to avoid paying up to 40% in British inheritance taxes.  The QDOT also meant that she was able to pass her entire estate to her husband free of federal and state estate taxes. Read more here. #revocabletrust#hardshipdistribution #maritaldeduction, #noncitizenspouse #qdot #qtip #wills, #estatemaritaldeduction, #hardshipdistribution

This is Estate Planning Awareness Week! Tip #3

Today’s Tip:  What is the Difference between an Heir and a Beneficiary?

 In everyday life, you will often hear people speak about their hope for an inheritance from a family member or relative.  However, this commonplace use of the term “inheritance” often masks a misunderstanding of the law and can lead to unintended consequences when misplaced assumptions are not addressed. Read more here. #estateplanning #wills #trusts #heirs #beneficiaries

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.

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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The Right of Sepulcher in the Age of Coronavirus

Leonard Melfi was a playwright best known for Oh! Calcutta! and for his many plays produced at LaMama Experimental Theater in New York’s East Village.  In his later years, he resided at the Narragansett Hotel located at 93rd Street and Broadway on Manhattan’s Upper West Side.  It was to this location that paramedics were summoned on October 24, 2001 when his niece who lived out of town tried to visit him but was unable to get him to answer the door.  Melfi was transported to Mt. Sinai Hospital where he died four hours later of congestive heart failure.

From there, Leonard Melfi’s story took a strange turn, one that not even he could have written.  Even though his patient registration form contained contact information for a close friend, the hospital failed to contact her.  As a result, no one in Melfi’s family knew that he had died.  His body remained in the hospital morgue for 30 days,  and thereafter his body was transferred to the City morgue at Bellevue Hospital.  There is no record as to whether any attempt was made at that point to contact Melfi’s family of his body’s whereabouts.  Melfi’s unclaimed body was subsequently transferred to the Nassau County Community College’s Mortuary Science Department where it was used for embalming practice by the students.  Finally, on December 20, 2001, Leonard Melfi was buried in a mass grave in Potter’s Field on Hart Island along with 150 other unclaimed bodies.

Melfi’s niece and his brother John would be informed of Leonard’s death two months later by the manager of the Narragansett Hotel. John Melfi then arranged to have his brother’s body exhumed and then held a proper funeral service at the Campbell Funeral home.  Leonard Melfi was finally laid to rest in the family plot in Binghamton, New York on April 18, 2002.    In May 2002, John Melfi filed a lawsuit against Mt. Sinai Hospital and the New York City Health and Hospitals Corporation, parent company of Bellevue, for medical malpractice, wrongful death, loss of sepulcher, fraudulent concealment and punitive damages.  We will concern ourselves here with loss of sepulcher because it is an issue that may arise again with the massive death toll and the accumulation of bodies in morgues during this time of coronavirus.

The lower court denied Mt. Sinai’s motion to dismiss the claim for loss of sepulcher (Melfi v. Mount Sinai Hosp., 877 N.Y.S.2d 300, 2009 N.Y. Slip Op. 03404), and the hospital appealed to the Appellate Division, First Department (Melfi v. Mount Sinai Hosp., 64 A.D.3d 26 (2009)).  In its decision, the court gave a detailed history for the right of sepulcher, but we will focus here specifically on the legal aspects that give rise to a claim under the right to sepulcher.  The court explained that  “the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and … damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body. (id. at 31).”   

The right of sepulcher is not a property right that would lead to damages and recovery under tort law but rather a quasi-possessory interest  such that damages are recoverable only for the emotional distress caused by the deprivation of the decedent’s body for proper disposition.  For damages under the right of sepulcher to accrue, two elements must be present:  “1) there must be interference with the next of kin’s immediate possession of decedent’s body and 2) the interference has caused mental anguish, which is generally presumed. Interference can arise either by unauthorized autopsy (Darcy, 202 N.Y. at 262–263, 95 N.E. 695), or by disposing of the remains inadvertently (Finley, 220 N.Y. at 257–258, 115 N.E. 715; Correa v. Maimonides Med. Ctr., 165 Misc.2d 614, 629 N.Y.S.2d 673 (Sup.Ct., Kings County 1995)), or, as in this case, by failure to notify next of kin of the death. (id, at 39).” The presumption of mental anguish suffered lies with the family member, meaning that the burden of proof shifts to the defendant to show that no such anguish occurred.

If you or your family has suffered mental anguish as a result a loss of sepulcher in New York due to the coronavirus pandemic, you should contact an attorney to assist you.  My law firm will be happy to consult with you and discuss your particular circumstances.

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.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.