IN RE THE ESTATE OF AMADEO FORMOSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5303-03T55303-03T5

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IN RE THE ESTATE OF AMADEO FORMOSO,

Deceased

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Submitted May 8, 2006 - Decided May 30, 2006

Before Judges Fall and Newman.

On appeal from Superior Court of New Jersey,

Chancery Division, Probate Part, Hudson County, Docket No. 286648.

Maria Carmen Costa Figueira, a/k/a Maria Carmen Formoso, appellant pro se.

Frank D. Angelastro, attorney for respondent Maria Formoso, also known as Maria de las Merecedes Rodriguez Siava (Mr. Angelastro of counsel and on the brief).

PER CURIAM

Maria Carmen Costa appeals from an order entered in the Probate Part on April 21, 2004, granting summary judgment in favor of Maria Formoso, executrix of her late husband Amadeo Formoso's estate, dismissing her verified complaint in which she sought an elective share of Amadeo's estate. We now affirm.

Viewing the facts in a light most favorable to Maria Carmen Costa, they may be summarized as follows. Amadeo and Maria Carmen Costa were married in Spain on July 16, 1966. They had three children. They separated in 1978 or 1980, with Amadeo moving to the United States, and Maria Carmen Costa remaining in Spain. After coming to the United States, Amadeo never again resided in Spain. The marriage of Amadeo and Maria Carmen Costa was dissolved by a default divorce judgment entered in the New York State Supreme Court on December 26, 1989. The judgment states that Maria Carmen Costa was personally served outside the State of New York. Amadeo and Maria Rodriguez Formoso were married in New Jersey on January 11, 1992.

On February 3, 2003, Amadeo executed a last will and testament leaving his residuary estate "to my wife, Maria Formoso[.]" In his will, he acknowledged "that I have other children who do not live in the United States and I specifically acknowledge that I am not leaving them any of the property I own in the United States." The will also appointed "my wife, Maria Formoso as Executrix of this my Last Will and Testament[.]"

Following Amadeo's death on May 12, 2003, Maria Carmen Costa appeared at the Hudson County Surrogate's Office on May 22, 2003, representing herself to be Maria Carmen Formoso, the wife of Amadeo, and obtained an order permitting her to obtain information concerning Amadeo's assets. On June 2, 2003, Maria Rodriguez Formoso presented Amadeo's will to the Surrogate's Office seeking probate. The Surrogate issued an order on June 2, 2003, vacating the May 22 order.

On June 16, 2003, Maria Rodriguez Formoso, as executrix of Amadeo's estate, filed a verified complaint, seeking an order admitting the will dated February 3, 2003 to probate; appointing her as executrix; and ordering Maria Carmen Costa to turn over to her any assets comprising Amadeo's estate. An order to show cause was issued on June 30, 2003, directing that Maria Carmen Costa show cause on August 1, 2003, why the relief requested in the verified complaint should not be granted. On August 5, 2003, the Probate Part entered an order of judgment granting the requested relief.

Four months later, on December 5, 2003, Maria Carmen Costa filed a verified complaint seeking an order setting aside the August 5 judgment. The complaint contended Maria Carmen Costa was the legal wife of Amadeo at the time of his death; that she had the right to an elective share; that she had the right, as his wife and widow, to various employment and union membership annuity and pension benefits; that she has "never been served with a summons and complaint seeking a divorce from any court in the United States"; that the purported will did not contain Amadeo's signature and that she should be appointed as administratrix of his estate; and that the alleged marriage between Amadeo and Maria Rodriguez Formoso should be declared null and void. On December 12, 2003, an order to show cause was entered by the Surrogate, directing Maria Rodriguez Formoso to show cause on January 16, 2004, why the relief requested in the verified complaint should not be granted.

An answer was filed to the verified complaint and, on March 4, 2004, Maria Rodriguez Formoso, as executrix of Amadeo's estate, filed a motion for summary judgment, seeking an order dismissing the complaint filed by Maria Carmen Costa. On April 21, 2004, Judge Thomas P. Olivieri in an oral decision, granted the summary judgment motion. Citing to N.J.S.A. 3B:8-1, the judge stated in pertinent part:

If a married person dies domiciled in this state, . . . the surviving spouse has a right of election to take an elective share of one third of the augmented estate under the limitations and conditions, provided that at the time of death the decedent and the surviving spouse had not been living separate and apart, in different habitations, or had not ceased to cohabit as man and wife, either as a result of a judgment of divorce from bed and board, or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of the State of New Jersey.

The statute is clear that even if the judgment of divorce in New York is declared null and void, Maria Carmen Costa would not be entitled to an elective share if, in fact, the parties were living separate and apart, in different habitations, or had ceased to cohabit as man and wife, either as a result of a judgment of divorce, or under circumstances which would have given rise to a cause of action for divorce to the decedent prior to his death under . . . the laws of the State of New Jersey.

Mr. Formoso had left Spain in the late 70's and did not reside in Spain with Ms. Costa after that. Ms. Costa has always lived in Spain and never resided in the United States.

. . . .

In the instant matter, . . . the facts are undisputed that the parties had been living separate and apart for at least 24 years. . . . Simply because of the fact that Mr. Formoso may have visited in 2001 with his children [and] family in Spain from his prior marriage does not raise an inference that would defeat a summary judgment notion even if the New York judgment is declared . . . null and void because of jurisdictional issues.

We agree and affirm substantially for the reasons expressed by Judge Olivieri in his oral decision. We add only that In re Estate of Hersh, 195 N.J. Super. 74, 77-80 (App. Div.), certif. denied, 99 N.J. 185 (1984), supports the proposition that Maria Carmen Costa could not receive an elective share of Amadeo's estate because she did not live with him for more than twenty years, even if the New York judgment of divorce was not recognized.

Affirmed.

 

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A-5303-03T5

May 30, 2006