10.11 - C. Determining Residency—The Decedent's Domicile

• Jurisdiction: New York

C. Determining Residency—the Decedent’s Domicile

Although the New York State estate tax laws refer to “residents” and “nonresidents,” for purposes of the New York estate tax, the term “residence” is intended to mean domicile.¹⁵⁴² New York State income tax regulations define domicile, in general, as the place which an individual intends to be such individual’s permanent home—the place to which such individual intends to return whenever such individual may be absent.¹⁵⁴³ The term domicile is similarly defined in the SCPA as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return.”¹⁵⁴⁴

An individual’s domicile once established continues until the individual moves to a new location with the bona fide intention of making such individual’s fixed and permanent home there.¹⁵⁴⁵ The burden is upon the person asserting a change of domicile to show by clear and convincing evidence that the necessary intention existed.¹⁵⁴⁶

Domicile has been defined by case law as largely a question of fact rather than one of law.¹⁵⁴⁷ Ultimately, domicile is a combination of intent and objective facts: intent to regard a particular place as the principal home, coupled with conduct evidencing that intent. In order to change one’s domicile, there must be not only a physical change of residence but also an intention to abandon the former domicile...