In Estate of Peck, the Chancery Division, Probate Part examined a decedent’s testamentary intent regarding the disposition of her foreign property, as expressed in a foreign will, on New Jersey’s spousal elective share statute. In Peck, the decedent had executed a will in New Jersey, directing that her husband receive only his spousal elective share of her estate. On the same date that she executed the New Jersey will, the decedent executed a document ratifying a prior will executed in Thailand, which disposed of all her property in Thailand. This contemporaneous document also stated that it was her intention that the New Jersey will dispose of only her property located within the United States.
The surviving spouse filed an application for his statutory elective share pursuant to N.J.S.A. 3B:8-1, and sought to include the decedent’s Thailand property in the “augmented estate,” for purposes of computing that elective share. The Estate opposed the application, asserting that the two wills in separate sovereign nations each governed the disposition of property in that respective nation. The Estate also argued that the court should effectuate the decedent’s intent that the property of the two countries be treated separately under the two wills.
In support of its position, the Estate had cited Aspden v. Nixon, 45 U.S. 467 (1846), which held that two different administrators (one in England and the other in Pennsylvania) possessed power extending “only to the limits of the sovereignties creating them, and that neither allows the other to meddle with any assets outside their respective jurisdictions;” thus, the Pennsylvania assets were subject to the control of the Pennsylvania administrator, and the English assets were subject to the control of the English administrator.
However, the Peck court noted a different result in the New Jersey case of In re Wolf’s Estate, 37 N.J. Super. 411 (Ch. Div. 1955). In Wolf, a New Jersey will provided that it was limited to assets within the United States; however, the decedent also owned assets in Monaco, and there was no will disposing of those assets and no one qualified there to administer the assets. The Wolf court concluded that, although the Monaco assets would not pass under the New Jersey will, they would pass by intestacy, to be administered by the New Jersey executor.
The Peck court rejected the Estate’s assertion that the central issue was whether the decedent had the right to have two separate wills disposing of separate assets in different countries. Instead, it found that the issue was whether foreign property covered by a foreign will has an effect on a New Jersey spouse’s right to an elective share. It concluded that the elective share statute was clear and unambiguous, and quoted the following provision of N.J.S.A. 3b:8-3:
The “augmented estate” means the estate reduced by funeral and administration expenses… to which is added the value of property transferred by the decedent at any time during the marriage or domestic partnership… to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration… if the transfer is of any of the following types:
a. Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property.
The court continued that “no evidence has been presented … which would establish that at the time of decedent’s death she did not retain possession or enjoyment of the … property in Thailand,” and that, because the augmented estate includes out of state property, it was of no significance that the property was in Thailand. Thus, the court concluded that the Thailand property would be included in the augmented estate for purposes of calculating the surviving spouse’s elective share.
In so doing, the court rejected the Estate’s argument that the decedent’s probable intent (that the New Jersey will dispose of only her property located in the United States) should be given effect. On the contrary, it found that “the elective share statute has nothing to do with carrying out the decedent’s actual intent. In fact, the statute may be utilized to circumvent the actual intent to disinherit a surviving spouse.”