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Matter of Estate of Hersh

Decided: July 6, 1984.

IN THE MATTER OF THE ESTATE OF HERBERT HERSH, DECEASED


On appeal from the Superior Court of New Jersey, Law Division, Probate Part, Bergen County.

Sullivan and Judges King and Bilder. The opinion of the court was delivered by Bilder, J.s.c. (Temporarily Assigned).

Bilder

[195 NJSuper Page 75] In this appeal we are asked to consider whether the existence of a no-fault ground for divorce bars a long separated wife's right to a statutory elective share in her deceased husband's estate. The principal issue presented is the proper construction of N.J.S.A. 3A:38A-1(a)*fn1 which gives a surviving spouse an elective share provided the parties, inter alia, have not ceased to cohabit as man and wife under circumstances which would

have given rise to a cause of action for divorce by the decedent prior to his death. The wife appeals from a judgment denying her a statutory share in her deceased husband's estate as well as denying her retroactive support and from the refusal of the trial judge to strike defenses for failure to comply with orders and court rules relating to discovery.

Appellant and the decedent were married in New York in 1940. In 1950 they separated and never lived together again. The one son (now about 40) born of the marriage lived with the mother. In 1955 the decedent obtained a Mexican divorce and at about the same time plaintiff obtained a judgment of separation from bed and board in New York. On appeal the New York Appellate Division ruled the Mexican divorce invalid, but struck the judgment of separation holding the obtaining of the Mexican divorce did not justify the judgment and noting that no abandonment was proven "as the parties had been living apart by mutual consent." Hersh v. Hersh, 5 A.D. 2d 874, 171 N.Y.S. 2d 450 (App.Div.1958). This was affirmed by the Court of Appeals in 1959. Hersh v. Hersh, 5 N.Y. 2d 878, 156 N.E. 2d 456, 182 N.Y.S. 2d 827 (Ct.App.1959). Since 1958, when the New York court struck the support orders, no proceeding was brought for the support of appellant or her son nor, as already noted, did the parties ever live together.*fn2

Decedent died in 1981 leaving a will in which plaintiff was not named.*fn3 Some months later appellant commenced this action in which she sought an elective share pursuant to N.J.S.A. 3A:38A-1(a). When this claim was adversely disposed of on a motion for summary judgment, appellant made a claim against the estate for alleged past due alimony and child support and

this claim was also denied on a motion for summary judgment. It is from these judgments that the appeal is taken.

I. The Elective Share

Prior to 1980 a married person was free to dispose of property by will however they wished and was not required to make any provision for a surviving spouse. See Arnault v. Arnault, 52 N.J. Eq. 801, 805 (Prerog.Ct.1894). A survivor's only claim was to dower or curtesy rights in real estate. N.J.S.A. 3A:35-1, 2.

N.J.S.A. 3A:38A-1(a) provided as follows:

If a married person died domiciled in this State on or after the effective date of this act, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

The effect of this statute was to drastically alter the preexisting law and provide a surviving spouse with an option to take one-third of the estate if he or she were not adequately provided for by the decedent. In adopting this provision however, the Legislature excepted that class of surviving spouse who, though still lawfully married to the decedent on the date of death, bore a relationship which was sufficiently removed from the normally thought of state of matrimony as to make such an election inappropriate. This relationship might be described as a quasi-divorced state -- a separation either by judicial decree or accompanied by circumstances which would have enabled the decedent to obtain a divorce. The Legislature sought to define this latter group by the use of the phrase "under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to ...


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