In the Matter of the Estate of Peck, P-825-12; Chancery Division, Probate Part, Sussex County; opinion by Gannon, J.S.C.; decided February 6, 2012; approved for publication January 24, 2013. DDS No. 38-4-8808 [6 pp.]

This case requires that the court examine the impact of the elective-share statute, N.J.S.A. 3B:8-1 to -19, on the actual intent of the decedent expressed in a foreign will disposing of her assets in Thailand, prior to the execution of a last will and testament in New Jersey.

The decedent, Pakdee Peck, died testate. At the time, she was married to and living with plaintiff Robert Peck. The provisions of her New Jersey will stated that it was her “express wish and desire that my husband, Robert M. Peck[,] receive only his elective share of my estate as defined in N.J.S.A. 3B:8-1.” The will made no reference to previous wills or property located outside of the United States.

Contemporaneous with signing the New Jersey will, decedent executed a separate written document, witnessed by two people and acknowledged before a notary public, which stated that she ratified the provisions of a will executed in Thailand disposing of all property in Thailand. She further expressed her intention that the New Jersey will dispose only of the property she owned in the United States.

Plaintiff filed a verified complaint for the statutory elective share pursuant to N.J.S.A. 3B:8-1. He lists “real property” and “bank account and investments” owned by the decedent in Thailand as property that should be included in her augmented estate for purposes of computing his elective share.

The estate opposes the inclusion of the property in Thailand in the augmented estate for elective-share purposes. It argues that a decedent has the right to have two wills in separate sovereign nations, each governing the disposition of property in that country, and that the court should adhere to the decedent’s intent that the property in each country be treated separately under each will.

Held: Decedent’s property located in Thailand must be included in her augmented estate in New Jersey for purposes of calculating the elective share of her surviving spouse pursuant to N.J.S.A. 3B:8-1, despite her intent to the contrary.

The court finds that the central issue here is not whether the decedent has the right to have two wills each disposing of assets located in different countries. The central issue is whether property owned by the decedent at the time of her death, located in a foreign country and covered by a final will executed in that foreign country, has an effect on the elective-share right under N.J.S.A. 3B:8-1.

To determine what assets are to be included in the augmented estate in New Jersey, the court looks to the elective-share statute’s language. It says the language is plain, clear and detailed. N.J.S.A. 3B:8-3(a) specifically states what property is to be included and excluded from the augmented estate. It includes property to which the decedent retained possession or enjoyment at the time of her death.

The court says no evidence has been presented that would establish that at the time of decedent’s death she did not retain possession or enjoyment of the property in Thailand. It is also of no significance that the property is located in a foreign country, as the augmented estate includes out-of-state real property to the same extent as it would be included if it were located in New Jersey.

Further, the property at issue does not fall within the exclusions in 3B:8-5, which excludes transfers made with the written consent or joinder of the surviving spouse, life and accident insurance, joint annuities or pensions payable to another. Thus, pursuant to 3B:8-3, the property in Thailand is probate property over which decedent retained possession or enjoyment until her death and shall be included in her augmented estate.

Finally, the court addresses the estate’s contention that the court should consider the decedent’s probable intent to exclude the property in Thailand from consideration as it pertains to her New Jersey will. It says the elective-share statute has nothing to do with carrying out the decedent’s actual intent and may be used to circumvent an actual intent to disinherit a surviving spouse. The court declines to consider decedent’s probable intent in establishing two wills covering property in separate countries. It says the decedent’s assets in Thailand must be included within her augmented estate in New Jersey for the purpose of calculating plaintiff’s elective share under the New Jersey will.

For plaintiff — Mark J. Hontz (Hollander, Strelzik, Pasculli, Pasculli, Hinkes, Gacquin, Vandenberg & Hontz). For estate of Peck — Gerald J. Martin (Biebelberg & Martin).