Bernice McKay, the surviving spouse of decedent, Louis McKay, has commenced this action seeking a statutory elective one-third share of the estate against his will as permitted by N.J.S.A. 3A:38A-1(a),*fn1 which provided as follows:
If a married person dies 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.
Defendant denies that plaintiff has a right of election to take an elective share: first on the ground that plaintiff's claim was time-barred; and, second, that plaintiff had not met the conditions of the statute, which allegedly requires as a pre-condition the decedent and the surviving spouse to have not been living separate and apart in different habitations at the time of death.
Plaintiff denies that she is out of time. She also denies that she and decedent were living separate and apart; and, in the event the court should find that they were living separate and apart, she argues in the alternative that separation alone is not sufficient to bar her statutory right of election.
From the stipulations entered into, the pleadings and evidence presented, I find the material facts to be as follows:
Plaintiff and defendant were married on December 28, 1975. No issue was born of this marriage. Mr. McKay died March 10, 1981 at 72 years of age, leaving a will whereby he bequeathed 20% of his estate to plaintiff and the remainder to Louis McKay, III, his son by a previous marriage. Mr. McKay had several prior marriages. Immediately prior to his marriage
to plaintiff, he was married to Eleanore Fagan, a well-known professional singer who performed under the name, Billie Holiday. No children were born of this marriage and Billie Holiday predeceased Mr. McKay, leaving to him her entire estate. Mr. McKay's estate consists almost entirely of royalty interests received from various musical compositions written or recorded by Billie Holiday and from her published biography. It was estimated that these royalty interests have averaged upwards of $15,000 to $20,000 annually.
Mr. McKay's will was offered for probate in Atlantic County, where, by judgment of the Atlantic County Surrogage dated April 7, 1981, his attorney, L. Mifflen Hayes, was qualified as executor. More than six months thereafter plaintiff sought to elect against the will pursuant to N.J.S.A. 3A:38A-1(a), supra. Judge Steedle, sitting in the Superior Court, Law Division, Probate Part, Atlantic County ruled that the attempted election was time-barred by reason of the six month limitation fixed by N.J.S.A. 3A:38A-5(a).*fn2 McKay v. McKay's Estate, 184 N.J. Super. 217 (Law.Div.1982), aff'd o.b. 188 N.J. Super. 44 (App.Div.1983).
While plaintiff's appeal was pending to the Appellate Division, a separate action was instituted by her in the Superior Court, Law Division, Probate Part, Atlantic County, which sought a judgment revoking the letters of probate previously issued on the grounds that the Surrogate of Atlantic County lacked jurisdiction, claiming the decedent was not domiciled in Atlantic County at the time of his death, but instead was domiciled in Camden County. This action was tried in Atlantic County before Judge Perskie, who found as follows:
1. Decedent moved to Atlantic County from the marital apartment, located in Camden, Camden County in May 1980.
2. In August 1980 decedent moved substantially all of his clothing and personal belongings from the Camden marital apartment to his residence in Atlantic County.
3. During most of the time between May 1980 and his death, decedent was physically present in the Atlantic County area. During this time the decedent kept in contact with plaintiff and periodically saw her at the Northgate apartment in Camden.
4. Decedent intended to remain in Atlantic County permanently and to reside there with his son, Louis McKay, III.
5. Although decedent was physically present in Atlantic County and intended to remain there permanently, he was not domiciled there as he had not picked out a particular abode where he intended to remain on a permanent basis.
As a result of these findings Judge Perskie entered an order dated August 16, 1983 vacating the judgment of the Atlantic County Surrogate admitting to probate the will of Louis McKay on the "sole ground that decedent was not domiciled in Atlantic County at the time of his death and that ...