A motion for summary judgment presents the following issue: Where a decedent child dies intestate, without spouse or issue and is survived by both parents, may a father who abandoned the decedent six months after birth now collect his intestate share of the estate under N.J.S.A. 3A:2A-35? For the reasons which follow, I hereby conclude that abandonment of a now deceased child does not terminate a parent's right under the intestacy laws to collect a share of the estate.
Michael Rozet died intestate on June 13, 1981. He was not survived by widow or children. The death certificate lists Bennett Rozet, plaintiff, as the decedent's father and Dorothy Zavodny as the maiden name of the decedent's mother. Letters of Temporary Administration were issued to the decedent's mother, Dorothy Miriam Mohan and "possibly his father, Bennett Rozet, if in fact his father is living."
In her capacity as temporary administratrix, Dorothy Miriam Mohan executed the New Jersey Inheritance Tax return for the decedent's estate listing herself and Bennett Rozet as beneficiaries of the estate. Subsequently, Dorothy Miriam Mohan
advised plaintiff through their respective attorneys that the temporary administrator would refuse to distribute any of the estate of the decedent to Bennett Rozet. This action was then filed seeking an accounting, the appointment of a general Administrator of the estate and a declaration of this court that plaintiff was an intestate heir of the decedent entitled to (1/2) one-half of the estate. Plaintiff has now moved for summary judgment. Based upon the following, summary judgment is hereby granted.
In order to dispose of a matter on a motion for summary judgment, there must be no genuine issue as to any material fact; all doubtful inferences are to be drawn against movant and in favor of the opponent of the motion. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). Thus, the facts as presented by defendant are accepted as true for purposes of this motion, although the father vigorously contests the abandonment claim.
Michael B. Rozet was born in 1941. Approximately six months after his birth plaintiff abandoned his children and their mother. From that day forward, plaintiff provided neither monetary nor emotional support. In 1941, Orders of Support were entered in the Commonwealth of Pennsylvania. Plaintiff never complied with these orders. Defendant estimates that she spent approximately $25,000 on living expenses from the time of abandonment until the decedent's twenty first birthday. Defendant received a divorce from plaintiff in 1945. Except for a brief meeting in 1950, there was no contact between plaintiff and his family.
Defendants' answer to the complaint asserts as a separate defense that plaintiff has "waived his right, if any, [to his intestate share], by abandoning, deserting and failing to support and/or maintain the infant decedent shortly after birth and by so doing is estopped from claiming any rights in said decedent's estate."
The issue before the court is whether abandonment can preclude intestate succession as set forth in N.J.S.A. 3A:2A-35,*fn1 which provides:
3A:2A-35. Share of heirs other than surviving spouse.
The part of the intestate estate not passing to the surviving spouse under section 37 of this act, or the entire intestate estate if there is ...