Where to Domicile or Where Not to Domicile. That is the Question.
February 21, 2019
In a recent decision in the Estate of Grunwald (NYLJ Jan. 28 2019, at 33 [Sur Ct, Richmond County]), Surrogate Titone aptly noted that “the concept of domicile is … very important in the Surrogate’s Court.” True words indeed. Where a decedent is domiciled at the time of his or her death determines which court has subject matter jurisdiction over the decedent’s estate.
SCPA § 205(1) provides that every Surrogate’s Court has subject matter jurisdiction over an estate of a decedent who died a New York domiciliary, but the particular county of domicile is the proper venue for any proceeding. Under SCPA § 206, the Surrogate’s Court may have jurisdiction of a non-New York domiciliary if the decedent died owning property in New York, or there is a wrongful death claim against a New York domiciliary. If the decedent had real property in more than one county, then the county where a proceeding is first commenced shall be the proper venue and retain jurisdiction (SCPA § 206(2)).
Laymen often use the terms “domicile” and “residence” interchangeably, yet in the Surrogate’s Court there is a distinction between the two with a very big difference. SCPA § 103(15) defines domicile as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return.” “Residence,” on the other hand, just means “living in a particular place” (see King v Car Rentals, Inc., 29 AD3d 205, 210 [2d Dept 2006], quoting Matter of Newcomb, 192 NY 238 ). A person can have several residences, but only one domicile.
Disputes over a decedent’s domicile—whether it is a different state, country, or county—typically arise at the early stage of a probate proceeding. These are very fact driven issues, and the courts have routinely recognized that where a decedent was domiciled is a “mixed question” of law fact that is determined by the unique circumstances of each case (Matter of Urdang, 194 AD2d 615 [2d Dept 1993]; Estate of Grunwald, supra). The issue in Grunwald, was whether the probate proceeding was pending in the proper New York county. The petitioner brought the proceeding in Richmond County on the grounds that the decedent (his mother) had been domiciled in Staten Island for more than two decades. The decedent’s granddaughter from a predeceased son moved to transfer the proceeding to Kings County on the grounds that the decedent died a domiciliary of Poland but owned real property in Brooklyn. The case law tells us that in determining where a decedent was domiciled, the Surrogate’s Courts often look at the following factors: where the decedent owned real property, filed income taxes, and registered to vote (id). But these are hardly exclusive. The case law further shows that proving any one factor is not necessarily dispositive of the issue. For example the Appellate Division has held that the fact that a decedent registered to vote in a particular state does not mean that the decedent made that state his or her domicile (see Laufer v Hauge, 140 AD2d 671 [2d Dept 1988]; Matter of Estate of Gadway, 133 AD2d 83 [3d Dept 1987]).
As this is a fact driven issue, the Surrogate’s Court will more often than not order a hearing to determine the decedent’s domicile, rather than decide the issue on motion. This is precisely what the Court did in Grunwald. Matter of Powers, 2018 NY Misc LEXIS 3710 (Sur Ct, Nassau County Aug. 1, 2018) is also instructive in this regard. In that case, the Nassau Surrogate’s Court determined that a hearing was necessary to determine whether the decedent died a domiciliary of New York or North Carolina. The respondent moved to dismiss the probate petition filed in the Nassau County Surrogate’s Court on the grounds that the decedent was a North Carolina domiciliary because he was living in an assisted living facility in North Carolina at the time of his death. In support of that position, the respondent presented undisputed evidence that the decedent maintained his personal possessions, attended church and social activities, and received medical care all in North Carolina.
The petitioners opposed dismissal, asserting that the decedent’s transition to the assisted living facility was not permanent and he always intended to return to his home on Long Island. The petitioners presented undisputed documentary evidence that the decedent filed tax returns in New York State (while in the North Carolina assisted living facility), retained a New York driver’s license, maintained bank accounts in New York, and declared New York his residence in the will offered for probate. Finding that the evidence presented by both sides “lead to conflicting inferences regarding domicile,” the court held that a hearing was required on the issue of domicile before it could decide the motion to dismiss.
 Farrell Fritz represented the petitioners in this proceeding.