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Cassano v. Durham

Decided: May 29, 1981.

MARGARET CASSANO, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF RONALD CASSANO AND JANE STRUBLE, PLAINTIFFS,
v.
LAWRENCE R. DURHAM, DEFENDANT



Schwartz, J.s.c.

Schwartz

[180 NJSuper Page 621] The issue in this case is whether one who maintains a "live-in" relationship with another without the benefit of a marital ceremony may recover under the Wrongful Death Act (N.J.S.A.

2A:31-1 et seq.) for pecuniary loss sustained by reason of the partner's accidental death.

N.J.S.A. 2A:31-4 provides that the amount recovered in proceedings under this statute "shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent."

In this case the partner had lived with decedent for seven years and they intended to get married. The court is asked to permit her to recover for her pecuniary loss as if she qualified as a "surviving spouse" under N.J.S.A. 3A:2A-34 of the intestacy statute.

The Legislature has plenary power over the devolution of title and the distribution of the intestate's property. In re Holibaugh , 18 N.J. 229, 235 (1955). Did it intend that decedent's cohabitant would become seized of an estate of inheritance upon decedent's death?

In Allstate Ins. Co. v. Skolny , 86 N.J. 112 (1981) the court interpreted the no-fault insurance statute, which provided for payment of surviving benefits to "the surviving spouse" (N.J.S.A. 39:6A-4(d), as intended to apply to "the long standing, clear and commonly accepted definition of a spouse that recognizes that once a person is legally married, that person remains a spouse until the marriage is legally terminated". Thus, the mere filing of a complaint for divorce and the entry of a default judgment against the nonresponding spouse, did not alter the status of the survivor as the "surviving spouse."

However, the court stated in a footnote:

We are not presented with the issue and do not propose to decide whether a couple that has never been married, but has openly cohabitated as husband and wife would be covered by this section of the PIP statute. Cf. Kozlowski v. Kozlowski , 80 N.J. 378 (1979) (quasi -marital agreement by cohabitating couples may be enforceable).

The "palimony" cases which have been decided in various states, including ours in Kozlowski, supra , have not been of aid to the court because they were not determined on the basis of

the status of the live-in partner but on entirely contractual grounds.

In Wood v. State Farm Mutual Automobile Ins. Co. , 178 N.J. Super. 607 (App.Div.1981) the court held that an economically independent companion who lived in the same home as the insured for three and one-half years before he suffered a vehicular accident and who married her almost two years later, had not been a member of her "family" residing in her household and therefore was ...


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