The "Newer" New Jersey Probate Code

October 7, 2006

Estate planning for New Jersey's over 16,600¹ same-sex couples underwent a seismic change for the better following the Legislature's passage of S2083, which recognized intestacy and other inheritance rights for registered domestic partners, and A1922, which recognized guardianship rights. The effect of the change was such that this article underwent a complete rewrite, much to the consternation of my editors since these bills were signed into law by Governor Codey just days prior to the end of his term. Despite these welcome developments, the lack of recognition of domestic partners by the federal government and many states will continue to make estate planning for such couples significantly more difficult—and expensive—than for comparable opposite-gender married couples, at least for the near future.²

This article reviews the modifications made to the New Jersey Probate Code by these bills and the areas of the probate code that remain in need of correction. It also provides a preliminary look at the effect of these amendments on the rights of same-sex couples in New Jersey.

The Newer New Jersey Probate Code

Prior to 2004, New Jersey law viewed couples as either married, with all of the state and federal rights and responsibilities, or unmarried cohabitants, with none of these marital rights and responsibilities. Under the then-existing laws, same-sex partners were never legally counted among family, widow, widower, surviving spouse, heir,³ or any other term that appeared throughout the probate code. Same-sex partners, regardless of the duration of their relationship or their devotion to each other, were considered legal strangers with, at best, an equitable right to a portion of each other's estates. Although New Jersey law failed to provide legal recognition to same-sex couples, the State was not generally hostile to such relationships.

As a result, estate planning for same-sex couples focused on three things: achieving control over disposition of each partner's assets, minimizing the effects of gift and estate tax laws that favored marriage, and ensuring that partners were entitled to make the kind of life and death decisions normally granted to next-of-kin.⁴ Even the simplest of estates for same-sex couples was complicated by the need for iron-clad wills, transfers outside probate, various forms of inter vivos trusts, and an extensive set of advanced directives covering every possible contingency. Even then, same-sex couples could not be entirely sure that they had achieved the same level of control, protection and tax avoidance that a legally married opposite-sex couple acquired immediately following their wedding.

In 2004, in part in response to the rising tide of marriage equality litigation that led to civil unions in Vermont and domestic partnership in California, the New Jersey Domestic Partnership Act (DPA) was enacted and signed into law by then-Governor James McGreevey. The DPA created a registry for same-sex couples and for opposite-gender couples age 62 or older that entitled them to certain rights and benefits that are accorded to married couples under the laws of New Jersey.⁵

Early commentary on the Domestic Partnership Act interpreted the Act as providing a substantially limited set of rights and responsibilities to domestic partners.⁶ The perception that the Act provides only a few rights arose as a result of the focus on the technical corrections in P.L.2003, C.246 made to other New Jersey statutes to conform their language to the new status of domestic partnership. Much of the early commentary focused on the words following the previously-referenced statutory language of Section 2d: including: statutory protection through the Law Against Discrimination … against various forms of discrimination based on domestic partnership status …; visitation rights for a hospitalized domestic partner and the right to make medical or legal decisions for an incapacitated partner; and an additional exemption from the personal income tax and the transfer inheritance tax on the same basis as a spouse.⁷

The first significant change to this limited view of the rights of domestic partners came as a result of a challenge to a property tax assessment in Montclair, New Jersey. In Hennefeld v. Township of Montclair,⁸ a same-sex couple who had married in Canada and registered in a civil union in Vermont appealed the denial of a 100% disabled veteran's property tax exemption for their jointly-owned home. New Jersey provides a 100% property tax exemption for the residence of a qualified disabled veteran. Where the veteran holds property with a spouse, the entire property is exempt, even if held in joint tenancy with the non-disabled spouse. The plaintiffs in this matter sought treatment equal to spouses, that is, the exemption of the entire residence, which they claimed was held as tenants in the entirety on the basis of their marriage in Canada.⁹

Although declining to recognize any rights as a result of the Canadian marriage or any rights under Vermont civil unions act, the court held that the exemption must be extended to the couple, retroactive to July 10, 2004, the date one which the New Jersey Domestic Partnership Act went into effect.¹⁰ The court focused on the above-cited language in Section 2d of the DPA, particularly the Legislature's use of the word including, to reach its holding that the Domestic Partnership Act was intended to be read broadly.

The lists of certain rights and benefits, contained in N.J.S.A. 26:8A-2(c) and 2(d) are not exclusive. Rather, they merely demonstrate, by way of example, the kinds of rights and benefits the Legislature intended to be extended to domestic partners under the DPA.¹¹

Thus, the court concluded, the partners were entitled to the 100% disabled veteran's exemption pursuant to the Exemption Statute, treating the Plaintiffs …in the same fashion as is 'accorded to married couples.'¹²

It was on the basis of this holding, as well as subsequent holding in a loss of consortium claim,¹³ that Betty Jordan, a 67-year-old Perth Amboy resident filed suit against the State of New Jersey and the Middlesex County Surrogate.¹⁴ Jordan's registered domestic partner, Rene Price, died intestate on July 28, 2005. Jordan and Price, who cohabitated for nearly 20 years, registered their domestic partnership on December 31, 2004. Although the couple had shared expenses throughout their lives together, the couple's home and two automobiles were solely titled in the decedent's name at the time of her death. Price had three living heirs, under the current law.

The suit sought to have Jordan receive treatment equal to that of a married couple under the probate laws of New Jersey as the registered domestic partner of the decedent.¹⁵ Specifically, Jordan sought to be named as the administrator of her partner's intestate estate in preference to all other heirs¹⁶, and that she serve without bond¹⁷, since she was entitled to the entire intestate share of her deceased partner, who died without a surviving descendent or parent.¹⁸

Senate Bill 2083 was initially introduced to conform the New Jersey Cemetery Act of 2003 to the Domestic Partnership Act and the newly enacted Probate Code. Its primary intent was to ensure that a surviving domestic partner was entitled to the same rights as a surviving spouse in regard to the control of a funeral and the disposition of his or her deceased partner's remains.¹⁹ The bill did not require registration in a domestic partnership.²⁰ Thus, the surviving partner of an unregistered domestic partnership would also be entitled to this right.

On December 12, 2005, modifications to S2083 and its identical bill in the Assembly were introduced in the Senate Judiciary Committee.²¹ This bill made it clear that domestic partners were to receive equal treatment to a spouse under the probate code in nearly all areas of the code, including intestacy, omitted spouses, and the elective shares. On January 12, 2006, S2083 was signed into law as P.L.2005, c.335, and became immediately effective. Passage of the bill thus ensures that for purposes of probate, at least, registered domestic partners are entitled to the rights and benefits that are accorded to married couples under the [probate] laws of New Jersey.²²

In general, S2083 corrected the probate code by amending nearly every occurrence of surviving spouse to read spouse or domestic partner. Thus, the definition of heir now includes the surviving spouse, the domestic partner and all others entitled under the laws of intestate succession. It also includes a definition of domestic partner that directly references section 3 of the Domestic Partnership Act.²³

Title 3B now requires equal treatment of domestic partners in terms of three critical areas: (1) intestate succession;²⁴ (2) omitted domestic partners;²⁵ and (3) elective share.²⁶

Amendments to Chapter 5: Intestacy

As amended, the intestate share of a surviving domestic partner is the same as that of a surviving spouse; that is, a. The entire intestate estate if (1) there is no surviving descendant or parent of the decedent or if all surviving descendants are also descendents of the surviving domestic partner; the first 25%, or at least $50,000 to $200,000, plus three-quarters of any balance of the intestate estate, where there are no surviving descendents but there is a surviving parent; or the first 25%, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate: (1) If all of he decedent's surviving descendents are also descendents of the surviving …domestic partner and the surviving domestic partner has one or more surviving descendants who are not descendants of the decedent; or (2) If one or more of the decedent's surviving descendants is not a descendant of the surviving …domestic partner.²⁷ Any part of the intestate estate not passing to the surviving domestic partner under N.J.S.3B:5-3 passes, as before, to the decedent's heirs.²⁸ Property held by the decedent and the surviving domestic partner as tenants in common and descending to two or more persons, creates a tenancy in common.²⁹ Notably, this includes property that the decedent and the surviving partner held ostensibly as joint tenants but that neglected to specifically state with rights of survivorship.³⁰

Where a domestic partner is omitted from a will that the decedent executed prior to registration as domestic partners, the surviving partner is entitled to the same share he or she would have received if the decedent had died intestate.³¹ However, if the omission appears to have been intentional because it appears to have been executed in contemplation of the registration as domestic partners, or if the will expressly states that it is to be effective notwithstanding any subsequent domestic partnership, or if the decedent provided for the surviving partner through some form of non-probate transfer in lieu of a testamentary transfer, the surviving partner is not entitled to the intestate share.³² Furthermore, any devises made to the surviving domestic partner under the decedent's will are applied first to satisfy the appropriate intestate share and all other devises are proportionately abated.³³ This last provision is now in conflict with the general rules of abatement, N.J.S.3B:23-12, which were not amended in S2083.³⁴

Modifications to Chapter 8: Elective Share

The third significant effect of S2083 is the amendment of Chapter 8, Elective Share,³⁵ to ensure that domestic partners are entitled to the same treatment as a married couple. For decedents who were domiciled in New Jersey, the surviving domestic partner has the right to take an elective share of one-third of the augmented estate, provided the partners were not living separate and apart in different habitations.³⁶ Unfortunately, the amendments to this section neglect to address when the partners are living apart under circumstances which would have given rise to a cause of action for [termination of the domestic partnership] with the decedent prior to his or her death.³⁷

The calculation of the elective share will differ significantly from that of a married couple, depending upon the answer to questions regarding ownership of property by domestic partners.

Modifications to Chapter 10: Personal Representatives

Chapter 10 of the probate code, which deals with personal representatives, is amended by S2083, placing domestic partners on an equal footing with spouses in regard to the administration of intestate estates. The surviving domestic partner now has the absolute first right to be named as administrator over his or her partner's intestate estate, if they choose to seek appointment.³⁸ Furthermore, where the total value of the real and personal property of the intestate estate does not exceed $20,000, the surviving domestic partner is entitled to all of the assets without administration, with the first $5,000 in assets free from the decedent's debts.³⁹ Furthermore, when a non-resident domestic partner dies intestate, New Jersey recognizes the decedent's partner's right to administer the ancillary estate.⁴⁰ One unfortunate omission from the amendments made by S2083 is found in N.J.S.3B:15-1, Bonds of Fiduciaries, which requires administrators to post a bond except where administration is granted to a surviving spouse where the decedent's entire estate is payable to the surviving spouse.⁴¹

Other Amendments Affecting Estate Planning

Other provisions that are amended by S2083 include the addition of domestic partners to Chapter 7, Effect of Decedent's Intentional Death,⁴² and Chapter 30, Uniform Transfer-on-Death Security Registration Act.⁴³

S2083 was not the only modification to the language of Title 3B made by the Legislature. On January 11, 2005, Governor Codey signed A1922 into law as P.L.2005, c.330. This bill, which had been in the works for some time, corrected the language of the guardianship provisions in Title 3B to clarify that domestic partners were entitled to the rights and benefits that are accorded to married couples under the [guardianship] laws of New Jersey.⁴⁴ For estate planners, the primary significance of the changes to the guardianship provisions is that it lessens the likelihood that hostile family members will challenge the designation of a registered partner as the preferred agent or proxy in an advanced directive, since it is now clear that a registered partner would have legal preference to being named as guardian over their incapacitated partner.

Although not strictly within the probate code, S2083 also amended the language of the Cemeteries Act,⁴⁵ clarifying that registered domestic partners had rights equal to that of a spouse in regard to taking control of their deceased partner's remains and to make burial arrangements in the absence of a contrary directive.⁴⁶ Thus, if a deceased domestic partner appoints a person in a will to make funeral arrangements and to otherwise dispose of the will, that person may make all arrangements, even if the person is not the executor and the will has not been entered into probate.⁴⁷ Otherwise, if no appointment has been made or the deceased domestic partner has died intestate, the surviving domestic partner has the right to control the funeral and disposition of remains in preference to all other heirs.⁴⁸

Omissions to the Corrections in Title 3B

There are a number of sections in Title 3B that were left uncorrected by S2083. With one exception, these provisions are minor and may be easily corrected later or may be interpreted by a court as including domestic partners. The most glaring omission is the failure to modify N.J.S. 3B:3-14, which provides for revocation of revocable transfers or bequests to former spouses following entry of a final divorce or annulment. This omission is probably unintentional, particularly when viewed in conjunction with N.J.S. 3B:8-11, which deals with waivers of the elective share in settlements entered into in anticipation of separation, divorce or termination of domestic partnership.⁴⁹

This section should be corrected to provide similar revocations for domestic partners following entry of a termination decree. Until this technical correction is made, former domestic partners must ensure that they explicitly revoke any such transfers or bequests following the termination. If termination is not final at the death of a partner, however, the surviving partner may be⁵⁰ able to take the elective share Chapter 8 of Title 3B, even though omitted from the decedent's will.

Another important section that was not modified, and should be corrected is N.J.S. 3B:3-30, which provides for an allowance by the Superior Court to the spouse or children of the decedent pending the outcome of a will contest. In order to establish and register a domestic partnership, the Domestic Partnership Act requires the partners to be jointly responsible for each other's common welfare.⁵¹ Jointly responsible is defined to mean that each domestic partner agrees to provide for the other partner's living expenses if the other partner is unable to provide for himself.⁵² As in a marriage, this obligation should continue following the death of a partner, at least until the decedent's estate is settled.⁵³

Thus, if a surviving domestic partner is unable to provide for himself or herself, the surviving partner should not lose this support during a will contest.⁵⁴ To do so would encourage hostile relatives and other parties in interest to take advantage of this loophole in order to force a settlement of a disputed will. Until a technical correction is made to this section, domestic partners should include a provision in their will providing for the continuing payment of such support to their surviving partner, as well as to any children of the surviving partner who may depend upon the decedent for support.⁵⁵

There are other, less critical sections of the probate code that were overlooked in S2083. These include the failure to include the children of the surviving domestic partner who are not the children of the deceased partner among the stepchildren of the decedent.⁵⁶ As a result, there is no provision for the children of the surviving domestic partner under the anti-lapse and class gift provisions.⁵⁷ This omission may be easily challenged, based upon prior court decisions in cases involving second-parent adoption.⁵⁸ S2083 also failed to correct the omission of the surviving domestic partner from the provisions providing inventory exemptions for the decedent's family and surviving spouse.⁵⁹

Registration as a Condition Precedent

As in opposite-sex couples for whom marriage is a requirement, the rights of domestic partners under the probate code are limited to registered domestic partners.⁶⁰ This raises three questions: (1) what constitutes registration in a New Jersey domestic partnership; (2) when is proof of registration required; and (3) what constitutes proof of registration.

Registration in a domestic partnership in New Jersey is a simple process. The partners must demonstrate that they are eligible⁶¹ and they must jointly file an Affidavit of Domestic Partnership.⁶² The Affidavit is filed with any local registrar⁶³ along with a fee.⁶⁴ Both partners must present themselves to the registrar.⁶⁵ Upon filing of the Affidavit and fee, the partners each receive a copy of the Affidavit, two copies of the Certificate of Domestic Partnership, and two copies of the Notice of Rights and Responsibilities.⁶⁶ Unlike the issuance of a marriage license, there is no waiting period.⁶⁷

The New Jersey Domestic Partnership Act also gives specific recognition to a domestic partnership, civil union or reciprocal beneficiary relationship entered into outside of New Jersey if it was valid under the laws of that jurisdiction.⁶⁸ Thus, a couple registered in a Vermont or Connecticut civil union, a California or Maine domestic partnership, or a Hawaii or Vermont reciprocal beneficiary relationship, or any other jurisdiction⁶⁹ that provide some form of registry is entitled to the rights and obligations under New Jersey law without the need to undergo subsequent registration in New Jersey.⁷⁰ A same-sex marriage, even where validly entered into in another jurisdiction, is not currently recognized in New Jersey as equivalent to a domestic partnership.⁷¹

There is no requirement under the law or the rules of court that a surviving partner be required to show proof of his or her registration in order to file for administration of the decedent's intestate estate, or to obtain any other right under the probate code. Indeed, if proof was required of domestic partners but not of married spouses, the requirement would most likely constitute a denial of equal protection and, perhaps, the Law Against Discrimination.⁷² However, if a party in interest raised the issue of validity of the domestic partnership, then proof of the continued validity of the domestic partnership may be required.

Proof that the decedent and the surviving partner were registered in New Jersey would be in the form of a valid Certificate of Domestic Partnership. For other jurisdictions, some other form of proof may be required, such as a certificate of civil union issued by Vermont or Connecticut, or a certificate of domestic partnership issued in Maine or California. Upon presentation of such proof, counsel for a party in interest may want to contact the issuing authority and determine whether the domestic partnership or civil union has been terminated.⁷³

Conclusion

Clearly, estate planning for same-sex couples in New Jersey will continue to be challenging. For example, although the current federal estate tax exemption of $2.5 million in 2005 means that relatively few same-sex couples will pay federal estate taxes, domestic partners are not eligible for the unlimited gift tax exclusion. As a result, many of the estate planning techniques in use for high net worth married couples are unavailable to domestic partners.

Furthermore, the Federal Defense of Marriage Act, and the proliferation of state laws and amendments prohibiting recognition of same-sex marriage, domestic partnerships and civil unions (so-called miniDOMAs), raise significant questions in regard to the estates of domestic partners who move from New Jersey to states such as Florida. Even when registered partners travel to a neighboring state, the rights and obligations they acquire as domestic partners in New Jersey are unavailable. As a result, estate planners who work with domestic partners must continue to prepare an extensive set of documents, including advance directives for contingencies that married couples never even consider, such as the right to drive a deceased partner's automobile, or the right to the partner's remains.

Even in New Jersey, the piece-meal recognition of domestic partner rights and responsibilities under the DPA means that surviving domestic partners, such as Betty Jordan, will face frequent court battles to achieve recognition of rights, such as the reduced fee that spouses and other recognized family members pay to transfer title to a decedent's automobile. Thus, attorneys who handle estate administration must be prepared to fight these kinds of battles on behalf of their clients in probate and other courts in New Jersey.

Finally, the future uncertainty regarding the availability of marriage for same-sex couples makes it difficult to create estate plans that are flexible enough to provide for that event.

The amendments to the probate code brought about by S2083 are certainly welcome corrections to the probate code that will help estate planners and others who work with domestic partners. But they are only the tip of the iceberg when it comes to achieve the goal of the Domestic Partnership Act, that domestic partners are afforded the rights of married couples under the laws of New Jersey.⁷⁴

1. This figure comes from the 2000 census. See Married-Couple and Unmarried Partner Households: 2000, Feb. 2003, United States Census Bureau. See www.census.gov. This number is probably underreported, since it relied upon self-identification by the reporting individual as a person having a same-sex partner living in the same household. Furthermore, following the 1990 census, the federal Defense of Marriage Act was passed, as a result of which any response that contained both same-sex and spouse was struck. See Technical Note on Same-Sex Unmarried Partner Data From the 1990 and 2000 Census, United States Census Bureau, www.census.gov/population/www.cen2000/samesex.html. See, also, www.gaydemographics.org for more detailed information.

2. I have chosen not to discuss the effect of a decision in the Lewis v. Harris case, currently before the New Jersey Supreme Court.

3. Heirs means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent. N.J.S.A. 3B:1-1. All other terms are found in the common law.

4. See, for example, Estate Planning for Gays and Lesbians, Douglas A. Fendrick, 156 N.J.L.J. 676 (1999).

5. N.J.S.A. 26:8A-2d.

6. See, e.g., Joanna Grossman, The New Jersey Domestic Partnership Law: Its Formal Recognition of Same-Sex Couples, and How It Differs From Others States' Approaches, http://writ.news.findlaw.com/grossman/20040113.html. See, also, New Jersey Domestic Partnership Act, http://www.gibbonslaw.com/publications/articlesuser2.cfm?pubid=1219 (The DPA …falls far short in provided certain rights that are otherwise available to married couples.); Joan A. Disler, The New Jersey Domestic Partnership Act: What it Means for Employee Benefits, http://www.ebglaw.com/article_940.pdf (The Act largely deals with employee benefits.).

7. N.J.S.A. 26:8A-2d.

8. 22 N.J.Tax 166 (2005).

9. Id.

10. Id at 204-205. The court correctly held that the couple's registration in a Vermont civil union was entitled to recognition as a registered domestic partnership in New Jersey. However, it declined to extend the rights of the couple under New Jersey law prior to the date the DPA went into effect.

11. Id at 198.

12. Id at 202.

13. The opinion is an unreported interim opinion in a case involving sexual harassment. The court allowed one of the plaintiffs, a woman in a domestic partnership, to add her partner's loss of consortium claim to the suit. Based on Hennefeld, the court did limit the claim to damages suffered from the date of the couples' registration. The case has not yet been fully decided and it is unclear whether the opinion will be challenged. See http://www.stephenhyland.com/2005/05/nj_allows_dp_to.html.

14. In re: Estate of Price, Doc. No.: 21-0504, Superior Court- Chancery Division, Probate Part: Middlesex County. The author represents Ms. Jordan.

15. Following the passage of S2083, which amended the probate code to include most of the relief sought by Jordan, the suit now seeks to establish that the changes to the probate code in S2083 are technical correction to the code to conform it to the Domestic Partnership Act.

16. N.J.S.A. 3B:10-2.

17. N.J.S.A. 3B:15-1c(2).

18. N.J.S.A. 3B:5-3a(2).

19. See http://www.njleg.state.nj.us/2004/Bills/S2500/2083_I1.HTM, introduced in the Senate on November 15, 2004 and referred to the Senate Judiciary Committee.

20. For purposes of this subsection 'domestic partner' means a person who is in a relationship that satisfies the definition of a domestic partnership as set forth in P.L.2003, c.246 (C.26:8A-1 et seq.)

21. The amendments to the bill were drafted at the request of Senator John Adler, the original sponsor of S2083, in part in response to Jordan's case. See N.J Woman to Fight for Partner's Estate, Courier-Post, October 16, 2005.

22. N.J.S.A. 26:8A-2d.

23. Domestic partner or partner means a person who is in a relationship that satisfies the definition of a domestic partnership as set forth in this act. N.J.S.A. 26:8A-3.

24. N.J.S.A. 3B:5-1 to 3B:5-14.

25. N.J.S.A. 3B:5-15.

26. N.J.S.A. 3B:8-1 to 3B:8-19.

27. N.J.S.A. 3B:5-3 as amended.

28. N.J.S.A. 3B:5-4 as amended.

29. N.J.S.A. 3B:5-14 as amended.

30. New Jersey law assumes tenancy in common in the absence of words indicating rights of survivorship.

31. N.J.S.A. 3B:5-15a.

32. Id.

33. N.J.S.A. 3B:5-15b.

34. N.J.S.A. 3B:23-12. (Except as provided in … connection with the share of a surviving spouse who elects to take an elective share.) This is a clear oversight.

35. N.J.S.A. 3B:8-1 to 3B:8-19.

36. N.J.S.A. 3B:8-1 as amended.

37. The causes of action for termination of a domestic partnership are nearly identical to those for divorce. N.J.S.A. 26:8A-10a.(2). Furthermore, there is no procedure for nullification of a domestic partnership, although such a cause could probably be brought where the domestic partnership was void ab initio. See Chapter 10, New Jersey Domestic Partners: A Legal Guide, Stephen J. Hyland, (Rutgers Press 2005).

38. N.J.S.A. 3B:10-2 as amended.

39. N.J.S.A. 3B:10-3 as amended.

40. N.J.S.A. 3B:10-7.

41. N.J.S.A. 3B:15-1c (2). This was one of the areas of dispute in the Jordan case, In re: Estate of Price.

42. N.J.S.A, 3B:7-1.1 as amended.

43. N.J.S.A. 3B:30-2 as amended.

44. N.J.S.A. 26:8A-2.

45. N.J.S.A. 45:27-1 et seq.

46. N.J.S.A. 45:27-22 as amended.

47. N.J.S.A. 45:27-22a.

48. N.J.S.A. 45:27-22a (1).

49. N.J.S.A. 3B:8-10 as amended.

50. I have suggested the following amendments to N.J.S.A. 3B:3-14. Introduction of these changes is currently on hold until the New Jersey Supreme Court marriage decision, Lewis v. Harris, is published.

3B:3-14. Revocation of probate and non-probate transfers by divorce, termination or annulment; revival by remarriage to former spouse or registration with former domestic partner

a. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment, or a contract relating to the division of property made between the former domestic partners before or after registration of the domestic partnership or its termination:

(1) revokes any revocable:

(a) dispositions or appointment of property made by a divorced individual to his former spouse or by a terminated partner to his or her former domestic partner in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse or the terminated partner's former domestic partner;

(b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual's former spouse or terminated partner's former domestic partner, or on a relative of the divorced individual's former spouse or terminated partner's former domestic partner; and

(c) nomination in a governing instrument of a divorced individual's former spouse or terminated partner's former domestic partner or a relative of the divorced individual's former spouse or terminated partner's former domestic partner to serve in any fiduciary or representative capacity; and

(2) severs the interests of the former spouses or former domestic partners in property held by them at the time of the divorce, termination or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses or former domestic partners into tenancies in common.

In the event of a divorce , termination or annulment, provisions of a governing instrument are given effect as if the former spouse or former domestic partner and relatives of the former spouse or former domestic partner disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse or former domestic partner and relatives of the former spouse or former domestic partner died immediately before the divorce, termination or annulment. If provisions are revoked solely by this section, they are revived by the divorced individual's remarriage to the former spouse, by the terminated partner's registration to the former domestic partner or by the revocation, suspension or nullification of the divorce, termination or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance.

A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse or former domestic partner unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

b. For purposes of this section: (1) divorce, termination or annulment means any divorce, termination of domestic partnership or annulment, or other dissolution or declaration of invalidity of a marriage or domestic partnership including a judgment of divorce from bed and board; (2) governing instrument means a governing instrument executed by the divorced individual or registered domestic partner before the divorce, termination or annulment; (3) divorced individual includes an individual whose marriage has been annulled; [and. (4) terminated partner means the individual whose registered domestic partnership has been terminated; and (5) relative of the divorced individual's former spouse or former domestic partner means an individual who is related to the divorced individual's former spouse or former domestic partner by blood, adoption or affinity and who, after the divorce, termination or annulment, is not related to the divorced individual or terminated partner by blood, adoption or affinity.

c. This section does not affect the rights of any person who purchases property from a former spouse or registered domestic partner for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse or former domestic partner was not entitled to under this section, but the former spouse or former domestic partner is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section.

d. A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce, termination or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section.

51. N.J.S.A. 26:8A-4.

52. N.J.S.A. 26:8A-3.

53. This seems to be borne out by the inclusion of domestic partners in the right to an elective share.

54. In fact, doing so would most likely constitute an equal protection violation under the New Jersey Constitution.

55. I have suggested the following changes to N.J.S.A. 3B:3-30. Introduction of these changes is currently on hold until the New Jersey Supreme Court marriage decision, Lewis v. Harris, is published.

3B:3-30. Allowances by Superior Court to spouse, domestic partner or children pending contest over probate of will

If a contest is pending over the probate of any paper purporting to be a will, the Superior Court may, on application by the widow or widower or surviving domestic partner of the decedent, by any of decedent's children, or by any children of any of decedent's deceased children, order the person having the custody of the decedent's estate to pay out of the income of the estate, pending the contest, an allowance for the support and maintenance of the widow, widower, surviving domestic partner, child or children as the court may deem just; and any further allowance out of the income, or, if need be, out of the corpus, of the estate as may be necessary to meet the expenses incurred or to be incurred in conducting the contest.

To entitle a widow or widower to the benefit of this section the applicant must have been ceremonially married to the decedent and been living with him or her as his or her spouse at decedent's death. To entitle a surviving domestic partner, as defined in N.J.S. 3B:1-1, the partners must share a common residence, as defined by N.J.S. 26:8A-1, et seq.

56. N.J.S.A. 3B:1-2. ('Stepchild' means a child of the surviving, deceased, or former spouse of the testator.); See, also, N.J.S.A. 3B:3-35. (For purposes of this section, a 'stepchild' means a child of the surviving, deceased or former spouse of the testator.).

57. N.J.S.A. 3B:3-35 and 3B:3-48.

58. Second-parent adoption, which involves adoption of the legal child of a same-sex partner, has been allowed for same-sex couples in New Jersey since 1993. The procedure is based upon an exception to the definition of stepparent, which normally is defined as the husband or wife of the child's legal parent, and allows courts to effectuate a stepparent adoption for same-sex couples that does not sever the other partner's parental rights. See Matter of Adoption of a Child by J.M.G., 267 N.J.Super. 633 (Ch. Essex, 1993); see, also, In re: Adoption of Two Children by H.N.R., 285 N.J.Super. 1 (App. Div. 1995); Stephen J. Hyland, The Changing and Uncertain Status of Same-Sex Families, 236-OCT N.J.Law. 16) (also available on this web site).

59. N.J.S.A. 3B:16-1 to 8.

60. Two adults who have not filed an Affidavit of Domestic Partnership shall be treated as domestic partners in an emergency medical situation … however, the provisions of this section shall not be construed to permit the two adults to be treated as domestic partners for any other purpose as provided in [the Domestic Partnership Act. prior to their having filed and Affidavit of Domestic Partnership. N.J.S.A. 26:8A-6f. (emphasis added.)

61. N.J.S.A. 26:8A-4b(1) - (7) and (9).

62. N.J.S.A. 26:8A-4b(8).

63. Unlike marriage licenses, the partners may file at any local registrar. Because many same-sex couples are deeply private about their relationship out of fear of discrimination or abandonment by family, they are often reluctant to file in their own community. Such couples can opt to register in more gay-friendly municipalities, such as Asbury Park, Montclair or Lambertville, or in large cities, such as Newark or Trenton.

64. N.J.S.A. 26:8A-4a.

65. N.J.S.A. 26:8A-4b(1) and (8).

66. N.J.S.A. 26:8A-8.

67. Id.

68. N.J.S.A. 26:8A-6c.

69. This language has been interpreted by the New Jersey Department of the Treasury Division of Pensions and Benefits to include local and municipal registries, including Wisconsin, New York City, Cook County, IL, Atlanta, GA, Westchester, NY, District of Columbia, Key West, FL, and Seattle, WA. It will consider certificates from other jurisdictions with appropriate documentation of the applicable laws. See http://www.state.nj.us/treasury/pensions/chapt_246_q&a.htm.

70. Vermont, Connecticut, Maine and Hawaii did not include any explicit recognition of domestic partnerships, civil unions or reciprocal beneficiaries entered into in other states. However, Connecticut most likely would recognize a New Jersey Domestic Partnership as equivalent to a civil union, (see http://www.ct.gov/ag/cwp/view.asp?A=1770&Q=302438) and it is likely that Vermont, Maine and Hawaii would extend recognition based on full faith and credit as well. The California Domestic Partnership Act contains language that specifically recognizes the validity of civil unions and domestic partnerships entered elsewhere.

Presumably, New Jersey would recognize a domestic partnership or civil union entered into in another country, such as the United Kingdom. However, the question has not yet been addressed.

71. Hennefeld v. Township of Montclair, 22 N.J.Tax 166 (Tax 2005). (While it is undisputed that Plaintiffs were legally married under Canadian law, the court finds no basis under New Jersey law that would allow recognition of that marriage.); But, see, In re Parentage of Robinson, (383 N.J.Super. 165, 890 A.2d 1036 N.J.Super.Ch. 2005).

72. N.J.S.A. 10:5-1, et seq.

73. Reciprocal beneficiary relationships create a special set of problems. In Vermont, only closely related opposite-sex persons may register as reciprocal beneficiaries. In Hawaii, any two individuals who are legally prohibited from marrying in that state may register as reciprocal beneficiaries. Thus, a Vermont reciprocal beneficiary relationship and an opposite-sex reciprocal beneficiary relationship should not be recognized as a domestic partnership in New Jersey. However, the Domestic Partnership Act bases its recognition on the validity in the other jurisdiction. This discrepancy will need to be eventually resolved.

74. N.J.S.A. 26:8A-2.

Posted by Stephen J. Hyland at October 7, 2006 2:01 PM