On appeal from Superior Court, Chancery Division, Probate Part, Ocean County.
King, Landau and Thomas. The opinion of the court was delivered by Landau, J.A.D.
Defendant, Laura A. Holling, Executrix of the estate of Honora Holling, appeals from a probate order of the Chancery Division awarding to plaintiff, Harry B. Holling Jr., an elective share of $14,303.63. In calculating this elective share, the trial Judge declined to consider the value of the marital home which had been owned by plaintiff and decedent as tenants by the entirety. We reverse and remand.
Honora C. Holling died testate on July 10, 1990. She was survived by her husband, Harry B. Holling, Jr., plaintiff, and by two children, Laura A. Holling and Harry B. Holling, III. Her
Last Will and Testament devised $1.00 to plaintiff and the balance of her estate, in equal shares, to her children. Plaintiff and the deceased owned a home located in Brick Township, N.J. as tenants by the entireties. Upon the death of Honora C. Holling, plaintiff became the sole owner of the property. The executor of the estate estimated the property value to be $99,334.23.
On December 17, 1990, plaintiff, Harry B. Holling, Jr. filed a complaint for his statutory elective share pursuant to N.J.S.A. 3B:18-15 and subsequently an Order to Show Cause why the relief sought in the complaint should not be allowed. The defendant filed an answer and simultaneously filed a letter memorandum in opposition, arguing that the marital home owned by plaintiff and the deceased as tenants by the entireties should be included in the augmented estate and also satisfy plaintiff's elective share.
The court heard argument on May 14, 1991 and determined that as the home passed to the plaintiff outside of any testamentary transfer, it was not to be included in the calculation of the augmented estate and plaintiff would be entitled to an elective share.
On September 12, 1991, plaintiff filed a Notice of Motion to fix the amount of the elective share. The appellant filed a letter memorandum in opposition, arguing that a plenary hearing is required to determine (1) whether the plaintiff and deceased cohabited in the past as man and wife, and (2) the amount and value of property owned by Mr. Holling in order to compute the value of the augmented estate.
The court heard oral argument on November 14, 1991 and directed plaintiff to respond via certification to appellant's allegations.
A certification responding to the de facto divorce allegations and setting forth assets was filed by the plaintiff on December 17, 1991. An order was entered on January 2, 1991, indicating plaintiff's entitlement to an elective share and providing further
that plaintiff's interest in any property held by plaintiff and the deceased as tenants by the entireties is not to be included in the elective share calculations. On March 3, 1992 the court below entered a final order determining the net value of the augmented ...