New Jersey’s interment statute, N.J.S.A. 45:27-22, establishes a hierarchy of decision-making power among surviving members of decedent’s family. The statute provides:

a. If a decedent, in a will as defined in N.J.S.A. 3B:1-2, appoints a person to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed. A person so appointed shall not have to be executor of the will. The funeral and disposition may occur prior to probate of the will, in accordance with section 40 of P.L.2003, c.261 (C.3B:10-21.1). If the decedent has not left a will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order, unless other directions have been given by a court of competent jurisdiction:
(1) The surviving spouse of the decedent or the surviving civil union or domestic partner; except that if the decedent had a temporary or permanent restraining order issued pursuant to P.L.1991, c.261 (C.2C:251-7 et seq.) against the surviving spouse or civil union or domestic partner, or the surviving spouse or civil union or domestic partner is charged with the intentional killing of the decedent, the right to control the funeral and disposition of the remains shall be granted to the next available priority class as provided in this subsection.
(2) A majority of the surviving adult children of the decedent.
(3) The surviving parent or parents of the decedent.
(4) A majority of the brothers and sisters of the decedent.
(5) Other next of kin of the decedent according to the degree of consanguinity.
(6) If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

For purposes of this subsection “domestic partner” means a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3).

In contrast, New Jersey’s disinterment statute, N.J.S.A. 45:27-23(a), reflects a more limited class of those permitted to disinter and provides that a surviving spouse, all surviving adult children, and the owner of an interment space must agree to disinter:

a. Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless:
(1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing;
(2) removal is authorized by a State disinterment permit issued by the local board of health; and
(3) the cemetery finds that removal is feasible.

In Marino v. Marino, 200 N.J. 315 (2009), the Court recognized the distinct differences between the internment and disinterment statutes but noted that while the power of a court to act in a manner contrary to the statute was preserved, the underlying preference was that the practice be limited. Marino, supra, 200 N.J. at 335. The Court did acknowledge that the wishes of the decedent may be considered under the circumstances extant in that case. Ibid.

A parent — in contrast to a surviving spouse — is neither identified in the statute as a party in interest nor is she entitled to advance the decedent’s wishes in this dispute.

To allow a “stranger” to the statutory scheme to advance a position contrary to the surviving spouse’s wishes would expand the scope of the disinterment process beyond what the Court has identified as the legislative intent to limit the process. The objective of both the interment and disinterment statutory schemes is to allow the deceased to lie at rest. This objective would not be met if disinterment could be challenged by strangers to that scheme.

In the absence of contrary written burial instructions from decedent, defendant retains exclusive authority to decide his wife’s interment under the plain language of New Jersey’s interment statute, N.J.S.A. 45:27-22. Marino does not change the outcome.

The court noted, however, that the Marino decision subjugates the primacy of a surviving spouse when there is a dispute with a co-equal participant — e.g., a majority of the decedent’s adult children who disagree with a surviving spouse’s decision to disinter.

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The objective of both the interment and disinterment statutory schemes is to allow the deceased to lie at rest originally appeared on NJ Family Issues on January 14, 2011.

The doctrine of probable intent has no application in the absence of a will. The doctrine of probable intent has evolved; it now represents, as our Supreme Court has held, a “broader and more liberal approach to will construction” than the prior insistence on formalistic results. In re Estate of Burke, 48 N.J. 50, 63 (1966).

The doctrine permits the reformation of a will in light of a testator’s probable intent by “searching out the probable meaning intended by the words and phrases in the will.” Engle v. Siegel, 74 N.J. 287, 291 (1977). Moreover, extrinsic evidence may be offered not only to show an ambiguity in a will but also, if an ambiguity exists, “to shed light on the testator’s actual intent.” Wilson v. Flowers, 58 N.J. 250, 263 (1971). The outer reach of the doctrine’s evolution is likely the Court’s decision in In re Estate of Branigan, 129 N.J. 324, 330-31, 335 (1992), where the doctrine was used to reform a will to take advantage of changes in federal estate tax laws that had occurred after execution of the will and after the death of the testator.

Although there has been a progression from an era that exalted and enforced more formalistic limits, the doctrine of probable intent has never been applied to create a testamentary disposition when the decedent failed to execute a will. It “cannot be used to write a will that the testator did not write.” In re Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005); accord Burke, supra, 48 N.J. at 64 (holding that even when a decedent has executed a will, “a court may not . . . conjure up an interpretation or derive a missing testamentary provision out of the whole cloth”); In re Cook, 44 N.J. 1, 12 (1965) (Hall, J., dissenting) (recognizing that “[a] wider outlook and reliance on probable intention should never be permitted . . . to work out a will which a testator did not make”); Chrisman v. Cornell Univ., 1 N.J. Super. 486, 489 (Ch. Div. 1948) (holding that “[t]he function of a court is to construe a will so as to give effect to the intention of the testator, but the court can not make a new will for him”).

In essence, the doctrine of probable intent is a rule of construction or interpretation and, therefore, presupposes an existing testamentary disposition. See, e.g., In re Estate of Payne, 186 N.J. 324, 335 (2006) (holding, “[i]n interpreting a will, our aim is to ascertain the intent of the testator”); In re Estate of Dawson, 136 N.J. 1, 9 (1994) (instructing that, in considering application of the testator’s probable intent, a court must “look first to the testator’s will”); Branigan, supra, 129 N.J. at 331 (viewing the doctrine of probable intent as “[a] leading principle governing will construction”); Cook, supra, 44 N.J. at 6 (recognizing that the doctrine of probable intent is a principle to be applied “in the interpretation of wills”); Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564-65 (1962) (defining the doctrine of probable intent as the device by which a court will “ascertain[] the subjective intent of the testator . . . [by giving] primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in light of the surrounding facts and circumstances . . .”). Where there is no will there can be no will construction.

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The doctrine of probable intent has no application in the absence of a will originally appeared on NJ Family Issues on December 29, 2010.

“By tradition . . . the law does not favor removal or disturbance of a decedent’s remains based upon a private right. Such action may be allowed, however, to satisfy a paramount public right or upon an affirmative showing of good cause and urgent necessity.” Camilli v. Immaculate Conception Cemetery, 244 N.J. Super. 709, 712 (Ch. Div. 1990) (citing Perth Amboy Gas Light Co. v. Kilek, 102 N.J. Eq. 588, 590 (E & A 1928); Fidelity Union Trust Co. v. Heller, 16 N.J. Super. 285, 290 (Ch. Div. 1951); Guerin v. Cassidy, 38 N.J. Super. 454, 458 (Ch. Div. 1955)). To that end,

the Superior Court possesses equitable jurisdiction, as a general matter, over the dead. This means, without the need for further delineation, that once a body is buried it is deemed to be in the custody of the law and the removal or disturbance of those remains lies, when not otherwise provided by legislation, within the court’s equitable powers the invocation of which infrequently occurs.

[Harris v. Borough of Fair Haven, 317 N.J. Super. 226, 232 (Ch. Div. 1998).]

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Once a body is buried it is deemed to be in the custody of the law and the removal or disturbance of those remains lies, when not otherwise provided by legislation, within the court’s equitable powers originally appeared on NJ Family Issues on December 22, 2010.

The twenty-three year time limitation imposed under the Parentage Act, N.J.S.A. 9:17-45(b), does not apply in a probate action. Wingate v. Estate of Ryan, 149 N.J. 227 (1997).

However, probate Rule 4:85-1 provides:

If a will has been probated by the Surrogate’s Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1 (d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances.

Thus, the Rule requires that an out-of-state resident file his complaint within six months of the probate of the will. Rule 4:85-2 allows for only a thirty-day grace period upon the showing of “good cause and the absence of prejudice.” Moreover, Rule 4:85-1 provides that if he is relying on the provisions of R. 4:50-1 (d), (e) or (f), his complaint must be filed within a “reasonable time.” In this case, Plaintiff claims that he filed his complaint “within a reasonable time under the circumstances,” given that the Estate did not notify plaintiff of the New Jersey probate action. R. 4:50-1(f). The Estate would be required to notify plaintiff if it knew he was decedent’s son. Rule 4:80-6 requires that,

within 60 days after the date of the probate of a will, the personal representative shall cause to be mailed to all beneficiaries under the will and to all [next of kin], at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Time limits to object to probate of a will originally appeared on NJ Family Issues on December 22, 2010.

Read: Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of New Jersey, by Frank D. Tinari and Kristin K. Kucsma, published in the Journal of Forensic Economics.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation originally appeared on NJ Family Issues on August 16, 2010.

The competed Form L-9 and attachments should be forwarded to the NJ Division of Taxation, Inheritance and Estate Tax, PO Box 249, Trenton, NJ 08695-0249.

Additional information pertaining to the use of Form L-9 may be obtained by calling the Inheritance and Estate Tax Section at 609-292-5033.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

N.J. Form L-9 is an affidavit requesting the issuance of a tax waiver for real property located in New Jersey which was held by a resident decedent originally appeared on NJ Family Issues on July 22, 2010.

Special thank you to Janet G Lazar, Esq., who made me aware of this information.

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Transfer of motor vehicle title upon death of owner originally appeared on NJ Family Issues on July 20, 2010.

See related Freakonomics Blog Post.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Are you Too Rich to Live? originally appeared on NJ Family Issues on July 15, 2010.

Wrongful death actions on behalf of a decedent must be prosecuted “in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.” N.J.S.A. 2A:31-2. See, e.g., Bauer v. Nesbitt, 198 N.J. 601 (2009) (wrongful death action prosecuted by decedent’s mother as administratrix ad prosequendum).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Who can prosecute a wrongful death actions on behalf of a decedent? originally appeared on NJ Family Issues on June 23, 2010.

In Marino v. Marino, 200 N.J. 315 (2009), the Court noted that when the issue is disinterment, a judge may “consider[] the decedent’s wishes, however expressed.” Id. at 335. A judge is obliged to consider the interests of all concerned, but is also “entitled to strike the balance in favor of giving voice to decedent’s clear preference.” Id. at 336. A decedent’s clearly expressed desire to be cremated should be respected.

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A decedent’s clearly expressed desire to be cremated should be respected originally appeared on NJ Family Issues on February 16, 2010.