2.12 - 2. Domicile

• Jurisdiction: New York

2. Domicile

Except with respect to issues involving inter vivos trusts (discussed below), the subject-matter jurisdiction requirements of SCPA 205 and 206 depend upon the domicile of the decedent at the time of his or her death, disappearance or internment.

The court, as a preliminary matter, will determine the issue of the decedent’s domicile.⁹⁹ The word “domicile” is derived from the Latin domus, meaning a home or dwelling house.¹⁰⁰ Domicile is not synonymous with residence. “Residence,” in its strictest sense, merely means a place of abode. It is determined by the physical fact alone and does not depend on the intent of the resident.¹⁰¹ Domicile, on the other hand, is residence coupled with an intention that such residence be permanent.¹⁰² It is defined as a fixed, permanent and principal home to which a person, wherever temporarily located, always intends to return.¹⁰³ The burden of proving a change of domicile rests upon the party who alleges the change.¹⁰⁴

In determining the decedent’s intent, no single factor is controlling. All acts, declarations, conduct, interests and associations must be considered in making such determination.¹⁰⁵ In fixing domicile, acts are regarded as more important than declarations, and written declarations usually are more reliable than oral ones.¹⁰⁶

An infant can have no domicile separate from that of his or her parent(s). In the case of divorce, the infant’s domicile is the same as that of the custodial parent. When one parent dies, the infant’s domicile is that of the surviving parent.¹⁰⁷ The guardian of an infant, acting in good faith, may be able to change the domicile of an infant for the infant’s benefit.

The committee of an incompetent may fix the domicile of the incompetent.¹⁰⁸ However, in In re Bonora, the Appellate Division, Second Department, held that the “mere fact” that a guardian had the “authority to choose the decedent’s ‘place of abode,’ does not warrant the conclusion that [the guardian] had any authority to change the decedent’s domicile.”¹⁰⁹

In cases involving the estates of nondomiciliaries of the state, the court’s exercise of jurisdiction is discretionary and sometimes not permitted.¹¹⁰ The factors influencing the decision of whether to entertain jurisdiction are described in In re Scott.¹¹¹

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Notes:

^[99] . In re Green, N.Y.L.J., Jan. 21, 1983, p. 15, col. 5 (Sur. Ct., Westchester Co.).

^[100] . In re Davy, 281 A.D. 137, 120 N.Y.S.2d 450 (3d Dep’t 1952).

^[101] . In re Green, 99 Misc. 582, 164...