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Carr v. Burgess

Decided: November 15, 1991.

JOYCE CARR, PLAINTIFF,
v.
ARTHUR W. BURGESS, EXECUTOR OF THE ESTATE OF H. THOMAS CARR, BARBARA CARR, MICHAEL T. CARR, KATHLEEN P. CARR, AND TIMOTHY P. CARR, DEFENDANTS



Epstein, P.J.F.P.

Epstein

This matter was remanded by the New Jersey Supreme Court for this court to determine the appropriate share of the marital estate which should be awarded to the plaintiff. The opinion of the Supreme Court, Carr v. Carr, 120 N.J. 336, 576 A.2d 872 (1990) contains the factual circumstances of this case through August 1987. Briefly, the plaintiff-wife married the defendant-husband in 1966. The defendant left plaintiff in 1983. Plaintiff filed for divorce in July 1984. Defendant died in 1987. He was survived by the plaintiff and by four children of his previous marriage.

The estate was substantial but plaintiff received only the marital home, which was held by the parties as tenants by the entireties, as defendant had disinherited her in his will. Under the dissolution statute, N.J.S.A. 2A:34-23, the plaintiff was not entitled to equitable distribution of marital assets because a dissolution of the marriage was never ordered. Under the probate statute, N.J.S.A. 3B:8-1, she was not entitled to a surviving spouse's "elective share" because the parties lived separate and apart at the time of defendant's death.

For reasons expressed in the Supreme Court opinion, plaintiff was permitted to amend her pleadings to implead defendant's executor and his estate and to seek a share of the marital assets on the equitable grounds of constructive trust, quasi -- contract and unjust enrichment.

Although novel, a determination of plaintiff's interest in the marital assets is not particularly difficult. It involves the examination of the lives of the parties, and their respective financial and other circumstances at the time of their marriage, through and

including the time plaintiff's share of the assets is awarded to her. In many ways this is similar to the investigation and analysis required by the equitable distribution statute and case law.

This case, however, has been complicated by the recent revelation of many claims against the estate which are far in excess of its assets. Whether the plaintiff's share of the parties' assets should be diminished because of these claims is an issue in this case. But, the question of priority of claims, or whether the plaintiff's share of assets are immune from creditors' claims, has become the overriding issue, since regardless of the percentage or share of the estate this court awards to the plaintiff, the award could be meaningless if she were placed in the same position as the other heirs and received her share only after the just debts of the estate were paid. Alternatively, if plaintiff were placed in the same category as the other creditors then her award would be substantially reduced as she would take her proportionate share of the estate based on her award and the amount determined to be due to the other creditors.

All of the creditors' attorneys were notified of this trial and three attorneys appeared on the trial date requesting the right to intervene.*fn1 The applications to intervene were granted.

The amount to be awarded to the plaintiff, however, was of no consequence to the creditors of the estate if their legal position regarding the higher priority of their claims prevailed. Their interest was identical to that of the attorney for the estate and the heirs. They sought to limit the share awarded to plaintiff in the event her share was "immunized" from the general creditors' claims or given priority over them, or even if she were deemed to be an additional general creditor. The intervenors, therefore,

agreed not to participate in the actual trial but left that to the attorney for the estate and the heirs.

I find the following additional facts based on the stipulations and the evidence adduced at trial ...


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