New Jersey Probate & Estate Litigation: Lack of Capacity as Grounds for Will Contest

The validity of a purported Last Will and Testament may be challenged for many reasons, including that the testator or testatrix lacked the mental capacity to make the Will. Generally, for purposes of a Will contest, the contestant has the burden of proving that the testator or testatrix did not have the requisite mental capacity at the time the Will was executed.

Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-1), any person over the age of eighteen (18) years old, who is of sound mind, may make a Will. Generally, a testator or testatrix has the necessary capacity to make a Will if he or she:

1. understands the general nature of the business in which he or she is engaged and the particular distribution he or she is effecting;
2. recollects the property of which he or she means to dispose and the persons who naturally are the objects of his or her bounty; and
3. comprehends the interrelation of these facts.

As can be imagined, the analysis is very fact-sensitive, and will ordinarily require expert testimony. As indicated above, only a minimal degree of capacity is necessary to make a Will. Furthermore, a very low degree of intelligence suffices for testamentary capacity – pursuant to New Jersey case law, even if the testator or testatrix is childish, “feebleminded,” a “drunkard,” an addict, suffering from memory lapses, or even classified as insane, he or she may still have the necessary capacity to make a Will.

Although the validity of a Will may be challenged for a certain period of time after it has been admitted to probate (generally, four months), a properly filed caveat may prevent the executor or executrix from receiving letters testamentary. Depending on the circumstances of each particular case, it may be advantageous to prevent the probate of a doubtful Will by filing a caveat, rather than seeking to challenge the probate judgment after the Will has been admitted.

Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, caveats, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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New Jersey Estate Litigation: Old Bridge Funeral Home v. Pruckowski, et al., and the Importance of Naming a Funeral Agent in Your Will

By: Justin M. Smigelsky, Esq.

 

Estate litigation includes, among numerous other potential claims, claims related to funeral arrangements, burial, and disinterment. Most disputes in this regard must be resolved by determining the authorized person to make such decisions. In a recent unpublished decision of the Appellate Division, Old Bridge Funeral Home, LLC v. Pruckowski, et al., the importance of designating a funeral agent in the Last Will and Testament was discussed. The relevant facts of the case were as follows:

• The decedent executed a Last Will and Testament directing the executor to pay her “just debts and funeral expenses.”
• The three children of the decedent were intentionally omitted from the Will.
• Despite funeral arrangements having been made by the executor at a funeral home in Union, the decedent’s children wanted a funeral closer to Old Bridge, where the decedent’s family and friends lived.
• The decedent’s son “booked” the funeral with Old Bridge Funeral Home for $30,789.00, and executed a “Payment Policy.”
• The children executed a contract/promissory note to guarantee payment.
• The funeral home filed suit for breach of contract when payment was not made, naming the children, the executor, and the estate as defendants.

The Appellate Division interpreted, and highlighted the significance of, N.J.S.A. 45:27-22(a) in reaching its decision. Pursuant to the statute, a testator/testatrix may appoint a person in his or her Will to control his or her funeral and disposition of human remains. It is not necessary that the appointed funeral representative be the executor/executrix of the Will, and the designated representative may act prior to the Will being admitted to probate. In the event that the decedent fails to make such a designation, or in the event that he or she died intestate (without a Will), the right to control the funeral and disposition, unless otherwise ordered by the Court, is set forth by statute in the following priority:

1. Surviving spouse (unless an active restraining order exists or an intentional killing of the decedent by the surviving spouse has occurred);
2. Majority of surviving adult children;
3. Surviving parent(s);
4. Majority of siblings;
5. Other next of kin according to degree of consanguinity; and
6. If no known relative, any representative providing written authorization.

As the decedent in Old Bridge Funeral Home, LLC v. Pruckowski, et al. did not designate a funeral agent in her Will, the statutory hierarchy applied – “as the surviving adult children of the decedent, the children had a higher priority right to control the funeral than [] the Executor.” Furthermore, the Court reasoned that “nothing in the statute [provides] that the statutory hierarchy shall be modified based on whether the children inherit under the Will.” The Court noted that it is the obligation of an executor to settle and distribute the estate in accordance with the Will and, therefore, to pay funeral expenses; however, the Court was clear that, when a third person makes funeral arrangements for a decedent at the expense of the estate, the expenses incurred must be reasonable. Ultimately, the Appellate Division remanded the matter to the trial court for the sole issue of determining what funeral expenses were reasonable, taking into account any applicable credit for the estate’s settlement with the funeral home.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding burial or disinterment of a loved one, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, estate administration, or estate litigation, contact the experienced estate attorneys at Timothy J. Little, P.C.

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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New Jersey Probate & Estate Litigation: Undue Influence as Grounds for Will Contest

By: Justin M. Smigelsky, Esq.

 

The validity of a purported Last Will and Testament may be challenged for many reasons including undue influence. Undue influence is defined as mental, moral, or physical exertion resulting in the destruction of the free agency of the testator. Despite the popular misconception, undue influence may be accomplished by either violent or peaceful means, including truthful statements or moral or psychological pressure on the testator.

Generally, the caveator or contestant of a Last Will and Testament has the burden of proving that a testator has been subjected to undue influence; however, a presumption of undue influence is raised where (1) there exists a confidential relationship between the testator and the person alleged to have exerted undue influence; and (2) suspicious circumstances exist as to the Will. Pursuant to New Jersey case law, if the Will benefits one who stood in a confidential relationship to the testator and if there are additional ‘suspicious’ circumstances, the burden shifts to the proponent of the Will to prove that the Will is valid. As explained in the landmark Haynes case,

The burden of proving undue influence lies upon the contestant unless the Will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present which require explanation. In such a case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent.

(See the 1981 New Jersey Supreme Court decision of Haynes v. First Nat’l State Bank)

A confidential relationship may include guardian, power of attorney, partner, business agent, business associate, legal counsel, medical adviser, physician, nurse, and spiritual advisor. In regards to family relationships, a confidential relationship may be found where trust and confidence exist. In regards to “suspicious circumstances,” the suspicious circumstances need be no more than slight. As set forth in New Jersey case law,

Circumstances suggestive of inequality, unfairness, imposition, or overreaching give rise to a presumption of undue influence, and there is cast upon the proponent the burden of coming forward with evidence in quality and force sufficient to dispel the presumption…[i]n a confidential relation slight circumstances may shift the burden.

(See the 1956 New Jersey Supreme Court decision of Blake’s Will)

The following are some examples from New Jersey case law as to circumstances or actions of the influencing party deemed “suspicious”:

• Where the Will provides for an unnatural disposition;
• Initiation of the preparation of the Will;
• Attending to the execution of the Will or selection of the drafting attorney or witnesses;
• Where someone in a position of trust drafts the Will or causes it to be drafted;
• Attempts to procure inter vivos gifts from the testator;
• Where attempts are made to isolate or exclude the testator;
• Efforts to conceal the Will or the fact that it has been drafted;
• Taking possession of the Will;
• Lying or spreading false stories about the natural beneficiaries;
• Embittering the testator or creating fear, paranoia, or prejudices; or
• Where the testator is mentally weak.

Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Colts Neck, Rumson, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-undue-influence-as-grounds-for-will-contest/
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New Jersey Probate & Estate Administration: The Refunding Bond and Release

By: Justin M. Smigelsky, Esq.

 

Pursuant to the New Jersey Probate Code, the personal representative of an estate (executor, executrix, administrator, or administratrix) is required to “take a refunding bond” upon making a distribution to a beneficiary of the estate. Specifically, N.J.S.A. 3B:23-24 states:

A personal representative shall, on paying a devise or distributive share or on delivering an instrument of distribution to the person entitled, take a refunding bond therefor, to be filed in the office of the surrogate of the county wherein he received his letters or in the office of the clerk of the Superior Court, if he received his letters from the Superior Court.

Furthermore, pursuant to N.J.S.A. 3B:23-26, the Refunding Bond must be conditioned substantially as follows, for devisees and distributes, respectively:

That if any part or the whole of the devise shall at any time thereafter be needed to discharge any debt or debts, devise or devises, which the personal representative may not have other assets to pay, he, the devisee, will return his devise or that part thereof as may be necessary for the payment of the debts, or for the payment of a proportional part of the devises

Or, as to distributees,

That if any debt or debts, truly owing by the intestate, shall be afterwards sued for and recovered or otherwise duly made to appear, and there shall be no other assets to pay, he shall refund and pay back to the administrator his ratable part of the debt or debts, out of the part and share so allocated to him.

In modern practice, the personal representative of an estate will usually combine a Refunding Bond document with a Release document (jointly referred to as the “Refunding Bond and Release”) and, once properly executed by each beneficiary, file same with the county surrogate. In sum, the Refunding Bond and Release document serves a dual purpose: (1) the person or entity receiving a distribution from the estate agrees to refund out of his or her share the ratable part of any unpaid debts owed by the decedent for which no other assets are available for payment, and (2) to discharge the personal representative of the estate of his or her duties upon distribution to the beneficiary of his or her share. Generally, the personal representative should not make distributions to beneficiaries until a properly executed Refunding Bond and Release is secured from each beneficiary.

Because estate and trust planning, administration, and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding your estate plan, the probate process, administration of an estate or trust, Medicaid liens asserted against an estate, the elective share, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County (Chesterfield, Bordentown, Beverly, Florence, Medford, Mansfield, Maple Shade, Bass River). If you have any questions or concerns regarding estate planning, estate administration, or estate litigation, contact the experienced estate attorneys at Timothy J. Little, P.C.

 

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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New Jersey Child Custody: Removal of a Child from New Jersey

By: Justin M. Smigelsky, Esq.

 

Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.

The requirement that children of divorced parents are not to be removed from this jurisdiction without either the consent of the non-custodial parent or for cause shown is subject to the exercise of judicial discretion. The task of the Court in achieving the purpose of N.J.S.A. 9:2-2 is to balance the right of the child and the non-custodial parent with the right of a custodial parent to seek a better life and, in striking that balance, the Court must be guided by what is best for the child. An appropriate disposition of a removal application is not necessarily the one that satisfies one parent or even splits the difference between the parents, but the one that will not be detrimental to the child.
Pursuant to the landmark decision of Baures v. Lewis, 167 N.J. 91, 116 (2001), the preliminary question in any case in which a parent seeks to relocate with a child is “whether it is a removal case or whether by virtue of the arrangement between the parties, it is actually a motion for a change in custody.” It is important to note that, in determining the custodial arrangement between the parties, the labels used in the Marital Settlement Agreement or divorce decree are not dispositive.
Where physical custody of the child is jointly shared, the parent seeking to relocate must demonstrate changed circumstances sufficient to warrant obtaining primary physical custody of the child. Where a parent already exercises primary custody, he or she must only demonstrate (1) a good faith reason for the move, and (2) that the move is not inimical to the child’s interests. As set forth in Baures, in assessing whether an application for removal has been made in good faith and whether the move will not be inimical to the child’s best interests, the Court should consider the following factors, with the amount of relevancy and weight given determined by the circumstances of each case:

1. the reasons given for the move;
2. the reasons given for the opposition;
3. the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
4. whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
5. any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
6. whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
7. the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
8. the effect of the move on extended family relationships here and in the new location;
9. if the child is of age, his or her preference;
10. whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
11. whether the noncustodial parent has the ability to relocate; and
12. any other factor bearing on the child’s interest.

In a 2016 reported decision of the Appellate Division, the Appellate Court addressed a non-relocation provision contained within the parties’ recently executed Marital Settlement Agreement and the impact of a spouse’s negotiation for same in bad faith. In Bisbing v. Bisbing, 445 N.J. Super 207, the parties agreed to joint legal custody with primary residential custody to the wife so long as she did not remove the children from the State, to live within twenty (20) miles of each other in New Jersey, and that neither party could remove the children from New Jersey without consent of the other party. However, nine (9) months after the Judgment of Divorce, the wife informed her ex-husband that she desired to relocate the children from New Jersey to Utah. In a well-reasoned decision, the Appellate Division determined that a plenary hearing was necessary and, if the negotiation for the non-relocation provision was in bad faith, the more-stringent best-interests-of-the-child standard would apply, as opposed to the Baures factors. On the other hand, if the party alleging bad faith could not demonstrate that bad faith negotiations took place, one of the following tests would be applied:

1. If wife could demonstrate a substantial and unanticipated change in circumstances to warrant avoidance of the agreed-upon non-relocation provision, the Baures analysis would be appropriate; or
2. If wife failed to demonstrate a substantial and unanticipated change in circumstances, the Court must determine the best interests of the children.

This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.  If you have any questions in regards to divorce in New Jersey, alimony, child support, equitable distribution, or family law, you may wish to consult with an experienced family law attorney.

Family Law Practice Specialties: Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.
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Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved

New Jersey Estate Administration & Litigation: Medicaid Liens and the Elective Share

By: Justin M. Smigelsky, Esq.

 

In a recent, published decision, In the Matter of the Estate of Arthur E. Brown, the Appellate Division addressed DMAHS’s ability to assert a lien against the estate of a Medicaid recipient for the unclaimed elective share of his wife’s augmented estate.  In affirming the Judgment of the Chancery Division, Probate Part of Burlington County, the Appellate Division held that the trial judge correctly found the elective share against the deceased spouse’s estate to be includible in the Medicaid recipient’s estate and, therefore, subject to a Medicaid lien. The following is an overview of the law regarding liens against the estate of a Medicaid recipient in New Jersey, and the impact of the New Jersey elective share:

Medicaid is a federally-created, state-implemented program which provides medical assistances to qualifying individuals. Federal Medicaid law requires participating states “to enact certain estate recovery provisions as part of their medical assistance plans.” Specifically, when an individual was over the age of fifty-five (55) years of age when he or she received medical assistance, states are required to “seek adjustment or recovery from the individual’s estate” for certain medical assistance provided. Additionally, participating states may recover Medicaid benefits after the death of the recipient’s surviving spouse provided that the Medicaid recipient leaves no surviving child who is under the age of 21, blind, or permanently and totally disabled.

To comply with federal estate recovery requirements, New Jersey enacted N.J.S.A. 30:4D-7.2(a)(2), which permits the filing of a lien against and recovery sought from the estate of the deceased recipient for assistance correctly paid or to be paid on his or her behalf for all services when he or she was fifty-five (55) years of age or older. For purposes of recovery, New Jersey statute defines an individual’s “estate” as including:

all real and personal property and other assets included in the recipient’s estate as defined in 3B:1-1, as well as any other real and personal property and other assets in which the recipient had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the recipient through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.

N.J.S.A. 30:4D-7.2(a)(3). Pursuant to N.J.A.C. 10:49-14.1(d), the Division of Medical Assistance and Health Services (DMAHS) is authorized to file any claim or lien against an estate within three (3) years of having received written notice from the estate’s representative or other interested party of the death of the Medicaid beneficiary.

Pursuant to N.J.S.A. 10:71-4.10(b)(3), income or resources which an individual is entitled to, but does not receive because of action or inaction by the individual, will constitute a transfer of assets for less than fair market value if within the five-year look-back period. To prohibit disinheritance of a surviving spouse who needs continuous support, New Jersey law entitles a surviving spouse (with some exceptions) to an elective share of one-third (1/3) of the deceased spouse’s augmented estate. Accordingly, as explained in In the Matter of the Estate of Arthur E. Brown, an inheritance, or the spousal elective share under N.J.S.A. 3B:8-10 of a deceased spouse’s estate, will be deemed an “available” asset to the surviving spouse during lifetime for purposes of Medicaid qualification, as well as asset in which the recipient had legal title or interest at the time of his or her death. In the event that an inheritance is waived, or the surviving spouse waives the elective share, the waiver may be deemed a transfer of an available asset subject to a penalty period of ineligibility from Medicaid benefits. Similarly, DMAHS may include the value of the elective share against the predeceasing spouse’s estate for purposes of asserting a lien against the estate of the recipient spouse.

Because estate and trust planning, administration, and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding your estate plan, the probate process, administration of an estate or trust, Medicaid liens asserted against an estate, the elective share, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.


Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, estate administration, or estate litigation, contact the experienced estate attorneys at Timothy J. Little, P.C.

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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New Jersey Divorce: Equitable Distribution of Personal Injury Awards

By: Justin M. Smigelsky, Esq.

 

Under New Jersey law the Court has the authority to distribute all eligible property that was legally and beneficially acquired during the marriage or civil union as part of equitable distribution. Some assets, however, are so inherently personal in nature that they may not be considered marital property for purposes of equitable distribution. Whether a personal injury award or settlement, or an amount recovered in a workers’ compensation claim, is subject to equitable distribution depends on the allocation of the recovery.

With respect to a settlement or award allocated as compensation for pain, suffering, and disability, the purpose of such funds is generally to make the injured party whole and restore the injured party to the condition preceding the accident. As set forth by the New Jersey Supreme Court in Landwehr v. Landwehr, an injured party’s pain, disabilities, and emotional suffering “persist unaffected by the breakup of the marriage.” Therefore, this portion of a personal injury recovery is meant to “fill a gap or loss in the physical and mental wellbeing of the injured spouse,” and does not represent an accumulated asset or surplus of marital property subjecting it to equitable distribution (“…a spouse receives compensation for pain and suffering and physical and mental disabilities for excrutiatingly personal reasons, wholly apart from the labors or efforts of economic transactions of the marital partners”). Similarly, the per quod claim (a claim for deprivation of spouse’s aid, society, and conjugal fellowship) of the uninjured spouse is generally viewed as being “just as personal as the pain and suffering at issue in the primary action”; accordingly, per quod claims are ordinarily not subject to equitable distribution.

Treated differently, however, is that portion of a personal injury award or settlement (or the amount recovered in a workers’ compensation claim) that is intended as compensation for lost earnings and medical expenses of the injured spouse – this portion of the award or settlement generally reimburses marital assets that were lost because of a spouse’s injury, belongs to both partners of the marriage and, therefore, is subject to equitable distribution upon divorce. It is worth noting that the allocation of such awards is not always clear, and the injured spouse has the burden of demonstrating what portion of his or her recovery represents compensation for pain, suffering, and disability. Should a party fail to demonstrate that a portion of the recovery is rightfully separate property, it will be deemed a marital asset subject to equitable distribution.

If you have any questions in regards to divorce in New Jersey, equitable distribution, family law, or personal injury law, you may wish to consult with an experienced attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Justin M. Smigelsky, Esq. is a member of the firm and offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.

Family Law Practice Specialties:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

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