Law Lessons from In the Matter of the Estate Of Michael D. Fisher II, __ N.J. Super. __ (App. Div. 2015), Docket No. A-0878-14T2, December 11, 2015:
N.J.S.A. 3B:5-14.1, which became effective on July 1, 2009, provides in part that:
b. A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate … if:
(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent,
failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or
failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death….
[The other provisions of N.J.S.A. 3B:5-14.1 prevent parents from taking under the intestacy scheme if they have committed certain enumerated crimes against the decedent, or “[t]he parent abused or neglected the decedent …, and the abuse or neglect contributed to the decedent’s death.” N.J.S.A. 3B:5-14.1(b)(2)-(4).]
“When items in a list are joined by a comma or semicolon, with an `or’ preceding the last item, the items are disjunctive.” State v. Smith, 262 N.J. Super. 487, 506 (App. Div. 1993). Thus, purely as a matter of grammar, the three clauses in N.J.S.A. 3B:5-14.1(b)(1) are distinct and separate from each other.
Thus, a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by:
(1) “willfully forsaking the decedent”;
(2) “failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection”; or
(3) “failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death….”
In order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.
The preponderance of the evidence standard is therefore the most appropriate to use in cases arising under N.J.S.A. 3B:5-14.1(b)(1).
Without the settled “purpose” or “specific intent” to abandon a child, there can be no abandonment or willful forsaking of a child.
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