In a case of first impression, the New Jersey Appellate Division recently clarified the circumstances in which a parent can be statutorily barred from receiving the parent's intestate share of a child's estate. The case is IMO Estate of Michael D. Fisher, II, Docket No. A-0878-14T2. (App. Div. December 11, 2015).
In response to the horrific facts of the case M.W. and to fill a statutory gap, the New Jersey Legislature enacted N.J.S.A. 3B:5-14.1, which sets forth certain circumstances that can lead to a parent losing his or her right to intestate succession.
N.J.S.A. 3B:5-14.1(b)(1) provides in pertinent part:
b. A parent of a decedent shall lose all right to intestate succession in any part of the decedent's estate ... if:
(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death....
In Fisher, Michael D. Fisher, Sr. ("Fisher") and Justina Nees ("Nees") were married and had a child, Michael D. Fisher, Jr. ("Michael"). Fisher and Nees were divorced and a restraining order was placed on Fisher after he attempted to remove Michael from school without notifying Nees. Fisher was only allowed supervised visitation with Michael and he was later ordered to undergo anger management counseling. Fisher did not comply the court-ordered counseling and from January 2002 until Michael's death at the age of fifteen on September 24, 2010, Fisher never had any legal visitation with Michael.
Fisher saw Michael on a public beach once and attempted to talk to him but Nees reminded Fisher of the restraining order and threatened to call the police; Fisher left. According to Fisher, about two months before Michael's death, Fisher had some limited communications with Michael via Facebook but shortly thereafter Fisher was blocked from communicating with Michael through Facebook.
Fisher was also in arrears on child support as of Michael's death. Importantly, Fisher certified that in the context of the prior divorce proceedings, Nees offered to forego child support if Fisher agreed to give up his parental rights to Michael. Fisher certified that he rejected Nees's offer and that he wanted to have a relationship with Michael. Nees did not contradict that statement in her written submissions.
After Michael passed away, Nees filed a Verified Complaint to bar Fisher from receiving a share of Michael's estate under N.J.S.A. 3B:5-14.1. On the return date of the order to show cause (and without a trial), the trial court granted Nees's application to bar Fisher from receiving a share of Michael's intestate estate. Fisher appealed that decision.
The Appellate Division reversed. Based on the Appellate Division's analysis, there are essentially four circumstances in which a parent of a decedent will lose all right to an intestate share of the child's estate. The first circumstance, not at issue in the Fisher case, is where the parent refused to acknowledge the decedent child. There was no evidence that Fisher refused to acknowledge Michael.
The latter three circumstances, those at issue in Fisher are set forth as follows: a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by:
(1) "willfully forsaking the decedent";
(2) "failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection"; or
(3) "failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death...."
The latter two tests were inapplicable to the Fisher case because there was no indication that Michael was exposed to physical or moral risk without proper and sufficient protection or n the care, custody and control of the State at the time of death. Thus, the analysis turned on whether Fisher had "willfully forsake[n]" Michael.
The Appellate Division held that "in order for a court to conclude that a parent has abandoned his or her child 'by willfully forsaking' him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child."
The Appellate Division held that Fisher's conduct did not fit within that standard because, though he was in arrears, Fisher did pay approximately two-thirds of the child support he was ordered to pay. In addition, the Appellate Division relied on the facts that Fisher rejected Nees's offer to forego all parental rights in exchange for not having to pay child support and that Fisher had made at least some limited attempts to communicate with Michael over the years. The Appellate Division analyzed these facts under a preponderance of the evidence standard and held that the facts showed Fisher's actions were not consistent with those of a parent whose "settled purpose" was to permanently forego all parental duties and relinquish all parental claims to the child.
The Appellate Division held that the statute does not apply and Fisher should be allowed to share in his son's intestate estate.