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Matter of Estate of Fred Del Guercio

September 25, 1985

IN THE MATTER OF THE ESTATE OF FRED DEL GUERCIO, DECEASED


McGann, Jr., J.s.c.

Mcgann

Fred Del Guercio died on December 7, 1984 a resident of Monmouth County. His will, dated July 13, 1984, was duly probated by the Surrogate of Monmouth County on December 20, 1984. His children, Fred Del Guercio and Margaret Del Guercio, qualified as co-executors.

The decedent was survived by his wife, Janet Del Guercio. On January 22, 1985 she filed a complaint seeking her elective share of his estate pursuant to N.J.S.A. 3B:8-1 et seq. and an evaluation of the same. Subsequently that complaint was amended demanding a declaration of a constructive trust in favor of the widow for a one-half interest in the residence of the decedent, and also declaration that the widow has a dower interest in the property and seeking an admeasurement of the same.

The facts necessary to the determination of the issues are undisputed. Janet and Fred Del Guercio were married September 3, 1969. By deed dated September 24, 1970 title to the property in question was taken by them as tenants by the entireties. On October 24, 1971, by bargain and sale deed, Janet Del Guercio conveyed her interest in the property to Fred Del Guercio. That deed contained no specific recitals as to the nature of the interest conveyed. During the summer of 1984 severe marital difficulties arose between husband and wife. On November 7, 1984 Janet left the marital residence and on

November 29, 1984 she instituted an action for divorce based upon extreme cruelty. Fred Del Guercio died before being served with process in that action.

After extensive discovery, Janet Del Guercio concedes that her claim for a widow's elective share under N.J.S.A. 3B:8-1 et seq. is moot. The "elective share" is one-third of the "augmented" estate. N.J.S.A. 3B:8-1. The augmented estate is defined in N.J.S.A. 3B:8-3. The value of the elective share is to be determined by the court and paid from the assets of the augmented estate. N.J.S.A. 3B:8-15. In calculating that value, the value of the surviving spouse's independently acquired property must first be deducted. N.J.S.A. 3B:8-18(a). If the value of her property is more than one-third of the augmented estate the surviving spouse gets nothing by election. In re Estate of Cole, 200 N.J. Super. 396, 403 (Ch.Div.1984). It is conceded that the surviving wife's independently acquired property exceeds one-third of the decedent's augmented estate. There is no elective share to be awarded.

The argument for imposition of a constructive trust is based upon the 1971 deed of the wife's interest to the husband. It is urged that it was made in the context of the "confidential" relationship of husband and wife and the constant importuning of the husband that she make the transfer. Although there is the suggestion that somehow her will was overborne in this regard, there is no substantiation of it at all in the moving papers. Competent persons act based on motivations which seem compelling to them at the time. Courts will not inquire, 13 years after the fact, into those motivations when the parties themselves have not sought to undo the legal consequences of those acts in the intervening years. To give effect to that principle of non-intrusion into marital affairs, absent proof to the contrary, courts adopt the presumption that a gift of the interest was intended. Trotta v. Trotta, 103 N.J. Super. 295, 298

(App.Div.1968). This court does the same. There is no legal basis for the imposition of a constructive trust.

Just as clearly as Janet Del Guercio is not entitled to an elective share or a constructive trust in one-half of the property is her entitlement to a dower interest.

N.J.S.A. 3B:28-1 provides, in pertinent part:

The widow . . . of a person dying intestate or otherwise, shall be endowed for the term of her . . . natural life of the one full and equal half part of all real property of which the decedent . . . was seized of an estate of inheritance at any time during coverture prior to May 28, 1980 to which the widow . . . shall not have relinquished her right of dower ...


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