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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