Law Lessons from McDONALD v. ESTATE OF MAVETY, 383 N.J. Super. 347, 358-59 (App. Div.), certif. denied 187 N.J. 79 (2006), A-1005-04T1, February 23, 2006:

The fundamental principle upon which courts decide palimony cases is that “the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other.” In re Estate of Roccamonte, 174 N.J. 381, 392 (2002). “[T]he right to support in that situation does not derive from the relationship itself but rather is a right created by contract.” Id. at 389. A palimony contract may be oral and may be either express or implied. Ibid. (citing Kozlowski v. Kozlowski, 80 N.J. 378, 384 (1979)). Its existence and terms “are ordinarily determinable not merely by what was said but primarily by the parties’ ‘acts and conduct in the light of . . . [their] subject matter and the surrounding circumstances.’” Ibid. (quoting Kozlowski, supra, 80 N.J. at 384). “[A] general promise of support for life, broadly expressed, made by one party to the other with some form of consideration given by the other will suffice to form a contract. . . . [even] without any further specification or elaboration of its terms . . . .” Id. at 389-90 (citing Kozlowski, supra, 80 N.J. at 384-85). When the court is satisfied that such a promise was in fact made, and subsequently broken, it will award the promisee “‘a one-time lump sum . . . in an amount predicated upon the present value of the reasonable future support [the promisor] promised to provide, to be computed by reference to . . . [the promisee's] life expectancy.’” Id. at 390 (quoting Kozlowski, supra, 80 N.J. at 385).

A critical element of a palimony claim is cohabitation for a significant period of time. Another panel of this court has recently reiterated, after analyzing the holdings in Roccamonte, Crowe, and Kozlowski, that failure to prove cohabitation in a marital-type relationship is fatal to a palimony claim. Levine v. Konvitz, ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op. at 2). A long-term intimate romantic relationship unaccompanied by actual cohabitation will not suffice. Id. at ___ .

A palimony claim “is simply a contractual undertaking binding the estate like any other contractual commitment the decedent may have made in his lifetime.” Roccamonte, supra, 174 N.J. at 397. The clear language of N.J.S.A. 2A:81-2 [the "Dead Man's Statute"] applies to the claim. That statute requires clear and convincing proof where a claim “supported by oral testimony of a promise, statement or act” of a deceased party underlies the claim against that party.

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