In re Estate of Holling
In re Estate of Holling
Opinion of the Court
The opinion of the court was delivered by
Defendant, Laura A. Holling, Executrix of the estate of Honora Holling, appeals from a probate order of the Chancery Division awarding to plaintiff, Harry B. Holling Jr., an elective share of $14,303.63. In calculating this elective share, the trial judge declined to consider the value of the marital home which had been owned by plaintiff and decedent as tenants by the entirety. We reverse and remand.
Honora C. Holling died testate on July 10, 1990. She was survived by her husband, Harry B. Holling, Jr., plaintiff, and by two children, Laura A. Holling and Harry B. Holling, III. Her
On December 17, 1990, plaintiff, Harry B. Holling, Jr. filed a complaint for his statutory elective share pursuant to N.J.S.A. 3B:18-15 and subsequently an Order to Show Cause why the relief sought in the complaint should not be allowed. The defendant filed an answer and simultaneously filed a letter memorandum in opposition, arguing that the marital home owned by plaintiff and the deceased as tenants by the entireties should be included in the augmented estate and also satisfy plaintiffs elective share.
The court heard argument on May 14, 1991 and determined that as the home passed to the plaintiff outside of any testamentary transfer, it was not to be included in the calculation of the augmented estate and plaintiff would be entitled to an elective share.
On September 12, 1991, plaintiff filed a Notice of Motion to fix the amount of the elective share. The appellant filed a letter memorandum in opposition, arguing that a plenary hearing is required to determine (1) whether the plaintiff and deceased cohabited in the past as man and wife, and (2) the amount and value of property owned by Mr. Holling in order to compute the value of the augmented estate.
The court heard oral argument on November 14, 1991 and directed plaintiff to respond via certification to appellant’s allegations.
A certification responding to the de facto divorce allegations and setting forth assets was filed by the plaintiff on December 17, 1991. An order was entered on January 2, 1991, indicating plaintiff’s entitlement to an elective share and providing further
On appeal, defendant contends that under N.J.S.A. 3B:8-6(a), the marital home should have been included in the calculation of the augmented estate; that once the augmented estate was calculated, plaintiff’s elective share was to be satisfied from plaintiff’s interest in the marital home under N.J.S.A. 3B:8-18(a); that plaintiff made no disclosure of his independent assets and thus the court could not determine the extent to which plaintiff’s independently owned property satisfied his elective share; and that the court should have declined to award an elective share or require a plenary hearing because sufficient facts were alleged to show that the decedent and plaintiff “ceased to cohabit as man and wife under circumstances which would have given rise to a cause of action for divorce or nullity of marriage”. N.J.S.A. 3B:8-1.
We need consider only the contention respecting calculation of the elective share. N.J.S.A. 3B:8-1 gives a surviving spouse a right to elect a one-third share of the deceased spouse’s “augmented estate”. The “augmented estate” consists of the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of:
(1) property which the decedent transferred without adequate consideration (N.J.S.A. 3B:8-3);
(2) property owned by the surviving spouse at the time of, or as a result of the decedent’s death by means other than testate or intestate succession without adequate consideration (N.J.S.A. 3B:8-6(a)); and
(3) property which the surviving spouse transferred to third parties without adequate consideration (N.J.S.A. 3B:8-6(b)).
a. The value of all property, estate or interest therein, owned by the surviving spouse in his own right at the time of decedent’s death from whatever source acquired, or succeeded to by the surviving spouse as a result of decedent’s death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse as a result of the decedent’s death has been renounced by the surviving spouse____
In In re Estate of Cole, 200 N.J.Super. 396, 491 A.2d 770 (Ch.Div. 1984) Judge Cohen explained the application of N.J.S.A. 3B:8-18(a) to the calculation of the elective share:
The quoted language says two things. The first is that the value of the survivor’s own independently acquired property must be deducted from her calculated elective share. If it is greater than her share, she gets nothing more. If it is less, she gets the difference.
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The second key statement in N.J.S.A. 3B:8-18(a) is that the value of the property coming to the survivor by reason of the decedent’s death is deducted from her calculated share. That means, among other things, that if the decedent leaves anything to his spouse in his will or by non-testamentary transfer taking effect on death, its value is to be deducted from her share.
[200 N.J.Super. at 403-404, 491 A.2d 770.]
The court distinguished our elective share statute from the Uniform Probate Code provisions in that:
Our law grants that share only to the extent the spouse satisfies a test of need. Her need is measured by the amount by which the value of her own wealth plus death transfers of all kinds from the decedent is exceeded by the calculated value of one third of the augmented estate.
[200 N.J.Super. at 404, 491 A.2d 770].
In view of the clear language of N.J.S.A. 3B:8-18(a) and Judge Cohen’s analysis in Cole, we find that the value of the marital home, allegedly $99,334.23, must be deducted from the plaintiff’s elective share calculation whether or not any interest in the home is included in the calculation of the augmented estate under N.J.S.A. 3B:8-6. See also In re Del Guercio Estate, 206 N.J.Super. 159, 162, 501 A.2d 1072 (L.Div. 1985).
Reversed and remanded for further proceedings consistent with this opinion.
Reference
- Full Case Name
- IN THE MATTER OF THE ESTATE OF HONORA C. HOLLING
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- 1 case
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- Published