Disabled Truck could be liable for death in accident here Rojas v. Estate of Wright

Disabled Truck could be liable for death in accident here   Rojas v. Estate of Wright

 Plaintiff appealed the grant of summary judgment to defendant trucking company in motor vehicle accident action.  source daily briefing September 24, 2022

A-3130-20 CASE DIGEST SUMMARYPlaintiff appealed the grant of summary judgment to defendant trucking company in motor vehicle accident action. Decedent was traveling on Interstate 280 when his vehicle collided with a disabled tractor trailer owned by trucking company. Defendant driver had parked tractor trailer on the shoulder with the left rear tires partially in the right traffic lane. Decedent's collision with the truck sent his vehicle into a Lyft vehicle which rebounded decedent's vehicle into the tractor trailer, killing driver. Lyft driver and passenger testified decedent did not travel into the right shoulder, maintained his lane and that there were no reflective triangles set out on the roadway. Police inspection of tractor trailer revealed 18 federal violations including air leaks in the brake lines. Plaintiff's expert opined the tractor trailer was in an "out-of-service" condition, should not have been on the highway and driver failed to place warning triangles as required by federal regulations. Trial court found decedent's negligence, a BAC of .062 and prior use of a cellphone, barred plaintiff's negligence action. Plaintiff argued the allocation of negligence between decedent and driver was a determination for the jury. Court reversed, finding trial judge was overly solicitous of defendant's comparative negligence arguments and did not give proper consideration to defendant's negligence.

Photocopy of Will admitted to probate here In the Matter of the Estate of Iapalucci

  Photocopy of Will admitted to probate here  In the Matter of the Estate of Iapalucci Three of decedent's children appealed the probate of a copy of his will.  source Daily briefing October 05, 2022  A-3670-20 CASE DIGEST SUMMARYThree of decedent's children appealed the probate of a copy of his will. Decedent built a business and his eldest son ran the business with him. Son accompanied father to law office in 2012 and watched father execute a will, power of attorney and advanced medical directive. The will could not be found after decedent's death in 2020. Son filed a caveat to prevent the filing of any "writing purporting" to be decedent's will. Decedent's three other children sought to have the caveat discharged, decedent declared intestate and an administratrix appointed. Son argued his siblings found the will and took it and he asked that his copy of the will be probated. Trial court found a rebuttable presumption that decedent revoked the will and ordered a hearing. After the hearing, trial judge found decedent did not retain exclusive possession of the will from the time it was executed until it went missing, decedent's behavior showed he planned to leave son with full ownership of the business and ordered probate of the will. Court affirmed trial court but for different reasons. Trial court erred in requiring that decedent had exclusive control of the will for the presumption to arise. Trial court properly found son established by clear and convincing evidence that the copy of the will reflected decedent's final testamentary intent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

IN THE MATTER OF THE ESTATE OF ALFRED IAPALUCCI, SR., Deceased. _________________________

Submitted September 13, 2022 – Decided October 5, 2022

Before Judges Messano and Gummer.

On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, Docket Nos. P- 000100-20 and P-000101-20.

Frank DiDomenico, attorney for appellants/cross- respondents.

Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys for respondent/cross-appellant (Elliott J. Almanza, of counsel and on the briefs).

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3670-20

Alfred G. Iapalucci, Sr. (Al), died on March 12, 2020, two weeks before his ninety-ninth birthday.1 In the 1970s, Al purchased approximately ten acres of land in Middle Township and over the ensuing years worked to build his business—a mobile home park—on the property. Although Al retained title to the real estate in his own name, he formed a corporation, A&J Mobile Home Court, Inc. (A&J), to operate the business, and Al's eldest son, Alfred G. Iapalucci, Jr. (Fred), ran the mobile home park with Al. Over the years, Al deeded small percentages of his ownership in the real property to Fred and his wife, Cindy.

In 2012, Fred accompanied his father to the law office of John Callinan, a retired judge and friend of Al and Fred. Fred watched Al execute a will (the Will), power of attorney and advance medical directive in Callinan's office, witnessed by Callinan and his wife, who was Callinan's secretary. Callinan gave Al the original Will and an unexecuted copy. After Al's death, however, the Will could not be found. Fred filed a caveat with the Cape May County Surrogate to prevent the filing of any "writing purporting to be [Al's] last will and testament."

1 Because some family members share the same last name, we sometimes refer to them by their first names to avoid confusion and for ease of understanding. We intend no disrespect by this informality.

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Al's daughter, Lynda Gazzara, joined by Al's three other children—Debra Tinsley, Lisa Iapalucci, and James Iapalucci, Sr. (collectively, the Siblings)— filed an order to show cause and verified complaint claiming they had no knowledge that their father had executed a will. The Siblings sought to discharge the caveat filed by Fred, have the Probate Court declare Al died intestate, and appoint Lynda administratrix of the estate.

Fred, however, obtained a copy of the executed Will from Callinan after Al's death; Fred filed his own verified complaint on the same day the Siblings filed theirs. Fred alleged the Siblings "found the original executed Will, w[ere] not pleased with its contents, and took it, along with the unexecuted copy." Among other things, the Will named Fred and Cindy executor and alternate executrix of Al's estate and bequeathed all real property Al owned, as well as his interests in A&J, to Fred; if Fred predeceased Al, the real property was bequeathed to Cindy. Fred's verified complaint asked the court to order production of the original Will, or, alternatively, to probate Fred's copy of the Will.2

Both sides moved for summary judgment. The judge initially accepted the Siblings' argument that because the Will had been in Al's possession and

2 The two actions were heard together, although never formally consolidated.

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now could not be found, a rebuttable presumption arose that Al revoked the will. See, e.g., In re Will of Davis, 127 N.J. Eq. 55, 57 (E. & A. 1940) ("If such a will was last seen in the custody of the testatrix or she had access to it[,] the fact that it cannot be found after her death raises the presumption that she destroyed it animo revocandi.").

The judge rejected Fred's argument that the motion record demonstrated as a matter of law the original Will had been stolen, and, pursuant to N.J.S.A. 3B:3-2 and -3, the executed copy of the Will should be admitted to probate.3 The judge's April 1, 2021 order incorporated these findings and ordered a "factual hearing."

3 N.J.S.A. 3B:3-2 sets forth the requirements for wills and holographic wills. N.J.S.A. 3B:3-3 provides:

  

Although a document or writing added upon a document was not executed in compliance with N.J.S.[A.] 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.[A.] 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

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Fred moved for reconsideration. He argued that because the court recognized material disputed facts existed as to whether someone stole the Will, it was a mistake to conclude Al had exclusive possession of it, and, in turn, that the presumption of revocation applied. The judge agreed, and his May 5, 2021 order stated all issues would be resolved at trial.

The trial took place over two days, with the judge hearing from nine witnesses: Fred and his four siblings, Fred's daughter Andrea, Al's neighbor William Sturm, Al's accountant Harold Livingston, and Callinan. In a written decision following trial, the judge noted the court's "first task" was to determine whether Al maintained exclusive possession of the Will from its execution until its disappearance, and then "regardless of the findings regarding exclusive possession, . . . whether the . . . Will reflected Al's final testamentary intent." The judge exhaustively reviewed the evidence.

He noted none of the siblings disputed that the "Will was properly executed on August 3, 2012," and all of them, including Fred, acknowledged Al "had the requisite mental capacity that would be required to . . . revoke the Will . . . if that is what occurred." The judge found that all the siblings "organized a care schedule to look after their father as his health began to decline" during the last two years of his life, and the judge recounted their testimony regarding

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access to Al's locked closet, and a safe and locked metal box he kept in the closet.

The judge noted Lynda's testimony that during the last days of Al's life, she retrieved the power of attorney and advance medical directive, both executed at the same time as the Will, from Al's lockbox. The judge acknowledged "the indisputable conclusion that [there] were some nights w[h]ere the Siblings could have access[ed]" the places where the Will may have been stored. He concluded "Al did not retain exclusive possession of the . . . Will from the time it was executed until it went missing."

The judge then reviewed the evidence regarding Al's "testamentary intent," citing extensively from the testimony of Fred, Sturm, Livingston, and Callinan. He found that Fred was the "primary caretaker" of his father, and, together with Cindy, "looked after, cooked for, and spent all their time with Al." The judge further concluded, "Al and Fred were extremely close, and . . . Al's behavior and comments indicated that he planned to leave Fred with full ownership" of the business. The judge "was impressed with the credibility and consistency of Fred's testimony, as well as his witnesses," and "[w]hile [he] acknowledge[d] the good qualities of the Siblings . . . , overall, [the judge] was less impressed with their testimony and found it less credible." The judge

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concluded all the evidence "support[s] the assertion that Al's testamentary intent remained unchanged until the end of his life." The judge ordered the Surrogate to admit the Will to probate, and this appeal followed.

Before us, the Siblings argue in three separate point headings variations on the same theme, specifically that the trial evidence did not support certain findings made by the judge, and, more generally, did not clearly and convincingly support the judge's conclusion that the Will reflected Al's final testamentary intent. Fred argues the judge properly found the presumption of revocation did not apply and, even if it did, the evidence clearly and convincingly overcame the presumption and demonstrated the Will reflected Al's "final testamentary intent." Fred also filed a defensive cross-appeal, contending that given the "one-sided" evidence in the motion record, the judge should have granted summary judgment in his favor without the need for a trial, and we should reverse the judge's April 1, 2021 order.

Our standard of review following a bench trial is well-known.

Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: "we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]"

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[Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150, 169 (2011) (alteration in original) (quoting In re Tr. Created By Agreement Dated Dec, 20, 1961 by Johnson, 194 N.J. 276, 284 (2008)).]

In reviewing the judge's findings, "[w]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (alteration in original) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, we owe no deference to the judge's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

Having considered the arguments in light of the record and applicable legal standards, we affirm, albeit for slightly different reasons than expressed by the trial judge, see Hayes v. Delamotte, 231 N.J. 373, 387 (2018) ("A trial court judgment that reaches the proper conclusion must be affirmed even if it is based on the wrong reasoning." (citing Isko v. Plan. Bd. of Livingston, 51 N.J. 162, 175 (1968))). We dismiss the cross-appeal.

The Siblings first argue the judge's finding that Al stored the Will in the metal lockbox, along with the power of attorney and the advance medical directive, was not supported by substantial credible evidence in the record, and

        

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they argue this erroneous finding was critical to the judge's conclusion that Al did not retain exclusive control over the Will after its execution and until his demise. However, there was ample evidence that Al did store the Will in the metal lockbox. More importantly, the only "critical" finding made by the judge was that regardless of the precise storage location for the Will—the safe or the metal lockbox—both were in Al's locked closet, and it was undisputed that several people, including some of the Siblings, regularly accessed the closet.

We part company with the judge and with the parties as to whether the presumption of revocation required a finding that Al had exclusive control of the Will. As already noted, our courts have said if a will was last seen in the possession of the decedent and cannot be found upon the decedent's death, there is a presumption the decedent destroyed the will with the intent to revoke it. Davis, 127 N.J. Eq. at 57. The trial evidence revealed that as far as anyone knew, the Will was last in Al's possession before his death.

None of the cases cited by Fred, nor any cases found in our research, require the decedent necessarily have "exclusive" possession of a lost will for the presumption of revocation to arise. See, e.g., ibid. ("If such a will was last seen in the custody of the testatrix or she had access to it[,] the fact that it cannot be found after her death raises the presumption that she destroyed it animo

  

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revocandi."); In re Will of Bryan, 125 N.J. Eq. 471, 473–74 (E. & A. 1939) ("The law . . . applicable to . . . lost wills is well defined. If such a will was last seen in the custody of the testatrix or she had access to it[,] the fact that it cannot be found after her death raises the presumption that she destroyed it animo revocandi." (emphasis added)); Campbell v. Smullen, 96 N.J. Eq. 724, 727 (E. & A. 1924) ("It is a well-established principle that when a will is left in the hands of the testator[] and is not found at the time of his death, a presumption of a revocation arises."); In re Will of Calef, 109 N.J. Eq. 181, 185 (N.J. Prerog. Ct. 1931) ("If the will is proved to have been in the testator's possession, and cannot afterwards be found, it will be presumed that he destroyed it, animo revocandi."), aff'd. o.b., 111 N.J. Eq. 355 (E. & A. 1932). None of these cases stand for the proposition that the presumption of revocation arises only if the testator has exclusive possession of a will without the possibility of access by others.

However, whether the presumption of revocation applied or not, we disagree with the Siblings' remaining two points. As best we can discern, the Siblings argue Fred failed to muster "clear and convincing" evidence to overcome any presumption of revocation and to support the judge's conclusion that the copy of the Will evidenced Al's final testamentary intent.

     

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At common law, the presumption of revocation was rebuttable by evidence that was "clear, satisfactory and convincing and the burden [wa]s on the proponents." Bryan, 125 N.J. Eq. at 474. Historically, some courts said such evidence "must be sufficient to exclude every possibility of a destruction of the will by" the testator. Ibid. (citing In re Estate of Willett, 46 A. 519 (N.J. Prerog. Ct. 1900)). However, that onerous standard is inconsistent with more recent legislation aimed at implementing a decedent's testamentary intent and making it easier to avoid intestacy by probating a technically deficient will. See N.J.S.A. 3B:3-3 (requiring the proponent of a will not executed in compliance with N.J.S.A. 3B:3-2 to "establish[] by clear and convincing evidence that the decedent intended the document . . . to constitute" his will) (emphasis added).

The clear and convincing standard also applies to one seeking to probate a lost will. "The term 'lost will' includes a will 'which may be in existence but whichcannotbefoundsoastobeproducedforprobate.'" InreEstateofEhrlich, 427 N.J. Super. 64, 83 (App. Div. 2012) (Skillman, J., dissenting) (quoting 3 Bowe-Parker, Page on Wills, §§ 27.1 at 433 (3d ed. 2004)). "[W]e require the proponent of a lost or missing will to establish the supposed intent of the document by clear and convincing evidence." Pivnick v. Beck, 326 N.J. Super.

     

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474, 483–84 (App. Div. 1999) (citing In re Will of Roman, 80 N.J. Super. 481, 483 (Hudson Cnty. Ct. 1963), aff'd o.b., 165 N.J. 670 (2000)).

In Ehrlich, we construed N.J.S.A. 3B:3-3 to permit the probate of an unexecuted copy of will when the original could not be found. 427 N.J. Super. at 75. We held: "The fact that the document is only a copy of the original sent to decedent's executor is not fatal to its admissibility to probate. Although not lightly excused, there is no requirement in N.J.S.A. 3B:3-3 that the document sought to be admitted to probate be an original." Ibid. We noted, "in dispensing with technical conformity, N.J.S.A. 3B:3-3 imposes evidential standards and safeguards appropriate to satisfy the fundamental mandate that the disputed instrument correctly expresses the testator's intent." Id. at 74. In "the case of admitting a copy of a [l]ast [w]ill to probate" the proof must be "clear, satisfactory, and convincing to rebut the presumption of the original's revocation or destruction." Id. at 75 (citing Davis, 127 N.J. Eq. at 57).

In short, whether applying common law principles dealing with overcoming the presumption of revocation or applying N.J.S.A. 3B:3-3 liberally for its intended remedial purposes to probate a technically deficient will, see id. at 72, the proponent of an executed copy of a will may successfully probate that

   

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copy by demonstrating "the instrument reflect[s] the testator's final testamentary intent" by clear and convincing evidence. Id. at 73.

Here, the judge found that regardless of whether the presumption of revocation applied, Fred established by clear and convincing evidence that the executed copy of the Will reflected Al's final testamentary intent. There was substantial support for this conclusion, with little, if any, evidence to the contrary. Certainly, given our standard of review, we accept the judge's findings and conclusions on this critical point.

Affirmed. The cross-appeal is dismissed.

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A prenuptial agreement requires full disclosure of assets by both man and women.

 A prenuptial agreement requires full disclosure of assets by both man and women. 

Prenuptial Agreements to Protect Your Assets in Case of Divorce or Death  

    By Kenneth A. Vercammen, Esq. 

Today, many persons may be planning into entering into second or third marriages. They question whether the marriage will work out and if it doesn’t will they lose ownership of their property if they get divorced. Most people want to leave substantial portions of their assets to their natural children. Yet, it is not uncommon for individuals to get married several times. If you wish to protect your assets from loss in divorce and permit your children to inherit your entire estate, consider entering into a prenuptial agreement prior to a marriage. 

A prenuptial agreement requires full disclosure of assets by both man and women. Each must be represented by a licensed New Jersey attorney. These are minimum requirements in New Jersey. If this is not provided we cannot prepare the prenuptial agreement. Consult fee only is $200 without document review. Our office’s minimum fee to review or draft the agreement is $2,000.

We use our Will questionnaire as a starting point for clients to fill out. Afterwards the client will have to prepare a list of assets.

Additionally, you should make advance plans regarding ownership and transfer your assets in the even of death or disability. In addition to having a formal Last Will and Testament individuals are encouraged to plan ahead prior to a second or third marriage. People who are about to marry can fix, limit and determine, by agreement, the interest, rights and claims that will accrue to each of them in their property. To this end, the prenuptial statute requires that each party be represented by separate independent counsel.

By signing a Prenuptial Agreement ("Agreement") each party is willing to accept the provisions of this agreement in lieu of any rights which she or he may have in the property and assets of the other. All property owned, whether real or personal, must be fully disclosed and revealed to each of the parties prior to the execution of the agreement. It must be signed in ample time prior to a forthcoming marriage. 

 

       Divorce, alimony or elective share against the Will can cost you more. A prenuptial agreement cannot prevent Medicaid from asserting a lien or payment if a spouse goes into a nursing home.

The following are some sample clauses used by attorneys in drafting the prenuptial agreements.: 

WHEREAS, the parties have known each other for a period of time and desire to marry and each has the utmost respect and consideration for the property and personal rights of the other and each is unwilling, because of marriage, to assert or succeed to any right or privilege whatsoever in certain property of the other during or after the lifetime of either party; 

and WHEREAS, both parties also believe that the modern and realistic approach to marriage is to further contemplate the effect of a separation or divorce and to outline the expectations and responsibilities of the parties, which, in fact, will promote the stability of their marriage; 

and WHEREAS, both parties understand that no marriage would be solemnized between them without this agreement as to their respective rights in the event of the death of either party or separation or divorce;   ,    and WHEREAS, each of the parties represents that his or her attorney, as the case may be, has privately, and without the other being present, read and explained to such party the provision of the following laws of the State of New Jersey, and has had the opportunity to obtain independent legal advice prior to the execution of this Agreement and has been fully advised as to his or her rights hereunder and has been fully advised as to his or her rights in the absence of such Agreement. WHEREAS, each of the parties hereto recognizes that in the event of the death of the other, providing they shall first marry, the survivor would be entitled to share in such decedents estate in an amount ranging from one-third of the estate to the entire estate depending upon what other distributes survive such decedent; 

and WHEREAS as a condition of marrying, the parties desire to enter into an agreement before marriage, waiving the right of election to take against and Last Will and Testament of the other whatsoever; 

and WHEREAS the parties desire by this agreement to mutually restrict the rights which each might otherwise have to take against the terms of the others Will, as such rights are set forth in the Laws cited above as well as any other law or decision of the State of New Jersey; and WHEREAS each desires to preserve his or her right to dispose of her excluded assets by Will as though no marriage had even taken place; and WHEREAS, each party expressly desires to retain the power to have his or her estate vest in his or her legatees or devisees as may be prescribed by his or her Last Will and Testament; and Full disclosure 

Each party hereby acknowledges that she or he has had the opportunity to ascertain, has been fully informed by a full and frank disclosure of, and is fully acquainted with and aware of, all of the income, debts, net worth, financial circumstances and value of the other and value of their property; and each party acknowledges that she or he is aware of, all pending litigation that may effect each of the parties to the within Agreement; and each has ascertained and weighed all of the facts, conditions and circumstances likely to influence her or his judgment in all matters embodied herein; that each has been given due consideration to all such matters and questions and clearly understands and consents to all of the provisions hereof, and is willing to accept the provisions of this Agreement in lieu of all of the rights in and to the aforementioned described property. Each Party keeps their own assets 

Wife __________ shall during her lifetime keep and retain sole ownership, enjoyment, power, control and disposal of her property, and proceeds of sale thereto, whether by way of gift, devise or other, free and clear of any interest, rights or claims of the other (including rights under community property laws). Waive, relinquish and release any and all right Both parties do hereby waive, relinquish and release any and all right, claims or demand of any kind, nature and description which she or he might otherwise acquire or have at any time hereafter in the above-described property of the other, by reason of their marriage to each other (including rights under community property laws) or as surviving spouse, whether by way of intestacy or dower or courtesy, or any other rights which she or he may have as a surviving spouse to share in the estate of the other, or to receive any allowance or exception from the estate of the other or to any right to elect to take against the Will of the other, or the right to act as administrator/administratrix of the estate of the other. However, either party may expressly provide for their spouse in their Will. 

Permission to make Will Nothing contained herein shall be deemed to constitute a waiver of any bequest or devise that one may choose to make to the other by way of Will or Codicil, or by any gift, grant or conveyance that one may choose to make to the other. However, each party to the Agreement agrees that no promise of any kind has been made by the other with respect to any such bequest or devise, or of any gift, grant or conveyance. 

No property if divorce In the event of an annulment, separation, legal or by mutual agreement, or the pending of final divorce between the parties hereto either in the jurisdiction of the State of New Jersey or any other state or territory or foreign country, or in the event that the parties hereto have lived apart for a period in excess of ninety (90) continuous days and one of the parties has no intention of returning, each party agrees that there shall be no property settlement or division of property between them with regard to the aforesaid property of the other or any increment, substitute or proceeds thereof, to any of the properties set forth above, but each shall keep and retain sole ownership, enjoyment, control and power of disposal of all properties set forth in Schedule "A" Separate Property acquired during marriage.

 It is understood and agreed by and between the parties hereto that any property acquired during the marriage in the name of one party or under circumstances in which it is clear that such property was intended to be acquired separately by one party or where the source of the funds or assets by which such separate property was acquired is premarital assets, shall remain the separate property of the party acquiring such assets, including but not limited to any property into which the same is converted. Property acquired by gift It is understood and agreed by and between the parties hereto that any property acquired during the marriage by either party by way of gift or inheritance from a third party shall be deemed the separate property of the party. Any assets acquired by the parties jointly during the marriage by way of gift or inheritance from a third party shall be deemed joint property acquired during the marriage. Responsibility for debts Each party hereto mutually warrants and represents to the other that whatever debtedness (including, but not limited to, any outstanding tax of any nature due any federal, state or local taxing authority) said party has at, or that has been accrued as of, the time of marriage shall be that party’s sole and exclusive responsibility, and said party shall indemnify and hold harmless the other for any indebtedness incurred previous to marriage. 

 

The following are portions of the Probate law, which may be avoided if a proper prenuptial agreement is signed: 

(a) N.J.S.A. 3B:8-1 of Administration of Estates wherein it is provided that if a married person dies domiciled in this State, on or after May 28, 1980, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate, subject to the limitations, conditions and exceptions contained therein; 

(b) N.J.S.A. 3B: 8-10 of Administration of Estates wherein it is provided that the right of election and the rights of the surviving spouse may be waived before of after the marriage after May 28, 1980 by a written contract, agreement or waiver signed by the party after fair disclosure, subject to the limitations, conditions and exceptions contained therein; 

(c) N.J.S.A. 37:2-31, et seq. Particularly N.J.S.A. 37:2-38C(2) of the Marriages and Married Persons Law, Article 5, wherein it is provided that a premarital agreement shall not be enforceable if a party proves that the party did not voluntarily and expressly waive in writing, any right to disclosure of the property and financial obligations of the other party beyond the disclosure provided.

 (d) N.J.S.A. 3B:5-15 of Administration of Estates wherein it is provided that if a testator fails to provide by Will for his surviving spouse who married the testator after execution of the Will that the omitted spouse shall receive the same share of the estate as if the decedent left no Will, subject to the limitations, conditions and exceptions contained therein; 

(e) N.J.S.A. 3B:5-3 of Administration of Estates wherein it provides for the interstate share of a surviving spouse; (f) N.J.S.A. 3B:28-3 of Administration of Estates wherein it provides for the right and possession of a spouse in the principal matrimonial residence;

 (g) N.J.S.A. 2A:34-23 et seq. Of Divorce and Nullity of Marriage wherein it provides for alimony, maintenance and equitable distribution; 

 

The following is the New Jersey "Uniform Premarital and Pre-Civil Union Agreement Act." 

 

NJSA37:2-31.  This article shall be known and may be cited as the "Uniform Premarital and Pre-Civil Union Agreement Act." 

 

37:2-32  Definitions.
  
37:2-32.  As used in this article: 



a."Premarital or pre-civil union agreement" means an agreement between prospective spouses or partners in a civil union couple made in contemplation of marriage or a civil union and to be effective upon marriage or upon the parties establishing a civil union; 

b."Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings; 

 


37:2-33  Formalities; consideration.



 

A premarital or pre-civil union agreement shall be in writing, with a statement of assets annexed thereto, signed by both parties, and it is enforceable without consideration.  


 

37:2-34  Contents of premarital or pre-civil union agreement

Parties to a premarital or pre-civil union agreement may contract with respect to: 



a.The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 



b.The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; 



c.The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event; 



d.The modification or elimination of spousal or one partner in a civil union couple support; 



e.The making of a will, trust, or other arrangement to carry out the provisions of the agreement; 



f.The ownership rights in and disposition of the death benefit from a life insurance policy; 



g.The choice of law governing the construction of the agreement; and 

h.Any other matter, including their personal rights and obligations, not in violation of public policy. 



 


37:2-35  Premarital or pre-civil union agreement not to adversely affect right of child support.



A premarital or pre-civil union agreement shall not adversely affect the right of a child to support. 

 

37:2-36  When premarital or pre-civil union agreement becomes effective.
  
37:2-36. When premarital or pre-civil union agreement becomes effective. 

A premarital or pre-civil union agreement becomes effective upon marriage of the parties or upon the parties establishing a civil union.

 

37:2-37  Amendment or revocation of premarital or pre-civil union agreement

     Amendment or revocation of premarital or pre-civil union agreement.

After marriage of the parties or the parties establishing a civil union, a premarital or pre-civil union agreement may be amended or revoked only by a written agreement signed by the parties, and the amended agreement or revocation is enforceable without consideration.


 

37:2-38  Enforcement of premarital or pre-civil union agreement; generally .     The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable.  A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that: 



a.The party executed the agreement involuntarily; or 



b.(Deleted by amendment, P.L.2013, c.72)



c.The agreement was unconscionable when it was executed because that party, before execution of the agreement: 



(1)Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party; 



(2)Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; 



(3)Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or 



(4)Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel. 

d.The issue of Unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable. 


 

37:2-39  Enforcement of premarital or pre-civil union agreement; marriage or civil union determined void 

If a marriage or civil union is determined to be void, an agreement that would otherwise have been a premarital or pre-civil union agreement is enforceable only to the extent necessary to avoid an inequitable result. 



 

37:2-40  Construction of article.



a.This article shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of the article among states enacting the "Uniform Premarital Agreement Act." 



b.This article shall be construed to apply to pre-civil union agreements executed on and after the effective date of P.L.2006, c.103 (C.37:1-28 et al.).


 

These are minimum requirements in New Jersey.

 

The following is the New Jersey "Uniform Premarital and Pre-Civil Union Agreement Act." 

 

NJSA37:2-31.  This article shall be known and may be cited as the "Uniform Premarital and Pre-Civil Union Agreement Act." 

 

37:2-32  Definitions.
  

As used in this article: 

   a.   "Premarital or pre-civil union agreement" means an agreement between prospective spouses or partners in a civil union couple made in contemplation of marriage or a civil union and to be effective upon marriage or upon the parties establishing a civil union; 

   b.   "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings; 

   c.   (Deleted by amendment, P.L.2013, c.72).

   amended 2006, c.103, s.27; 2013, c.72, s.1.

 

 


37:2-33  Formalities; consideration.
 As used in this article: 

   a.   "Premarital or pre-civil union agreement" means an agreement between prospective spouses or partners in a civil union couple made in contemplation of marriage or a civil union and to be effective upon marriage or upon the parties establishing a civil union; 

   b.   "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings; 

   c.   (Deleted by amendment, P.L.2013, c.72).

   amended 2006, c.103, s.27; 2013, c.72, s.1.

 

37:2-34  Contents of premarital or pre-civil union agreement.

   Parties to a premarital or pre-civil union agreement may contract with respect to: 

   a.   The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 

   b.   The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; 

   c.   The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event; 

   d.   The modification or elimination of spousal or one partner in a civil union couple support; 

   e.   The making of a will, trust, or other arrangement to carry out the provisions of the agreement; 

   f.   The ownership rights in and disposition of the death benefit from a life insurance policy; 

   g.   The choice of law governing the construction of the agreement; and 

   h.   Any other matter, including their personal rights and obligations, not in violation of public policy. 

   L.1988, c.99; amended 2006, c.103, s.29.

 


37:2-35  Contents of premarital or pre-civil union agreement.

   Parties to a premarital or pre-civil union agreement may contract with respect to: 

   a.   The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 

   b.   The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; 

   c.   The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event; 

   d.   The modification or elimination of spousal or one partner in a civil union couple support; 

   e.   The making of a will, trust, or other arrangement to carry out the provisions of the agreement; 

   f.   The ownership rights in and disposition of the death benefit from a life insurance policy; 

   g.   The choice of law governing the construction of the agreement; and 

   h.   Any other matter, including their personal rights and obligations, not in violation of public policy. 

   L.1988, c.99; amended 2006, c.103, s.29.

 

37:2-36  When premarital or pre-civil union agreement becomes effective. 

   A premarital or pre-civil union agreement becomes effective upon marriage of the parties or upon the parties establishing a civil union.  

   L.1988, c.99; amended 2006, c.103, s.31.

 

 

 

37:2-37  Amendment or revocation of premarital or pre-civil union agreement.

   After marriage of the parties or the parties establishing a civil union, a premarital or pre-civil union agreement may be amended or revoked only by a written agreement signed by the parties, and the amended agreement or revocation is enforceable without consideration.

   L.1988, c.99; amended 2006, c.103, s.32.

 

 

NJSA 37:2-38. Enforcement of premarital or pre-civil union agreement; generally. 

   The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable.  A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that: 

   a.   The party executed the agreement involuntarily; or 

   b.   (Deleted by amendment, P.L.2013, c.72)

   c.   The agreement was unconscionable when it was executed because that party, before execution of the agreement: 

   (1)   Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party; 

   (2)   Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; 

   (3)   Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or 

   (4)   Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel. 

   d.   The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable. 

 

 

37:2-39  Enforcement of premarital or pre-civil union agreement; marriage or civil union determined void.

   If a marriage or civil union is determined to be void, an agreement that would otherwise have been a premarital or pre-civil union agreement is enforceable only to the extent necessary to avoid an inequitable result. 

   L.1988, c.99; amended 2006, c.103, s.34.

 

37:2-40  Construction of article. 

   a.   This article shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of the article among states enacting the "Uniform Premarital Agreement Act." 

   b.   This article shall be construed to apply to pre-civil union agreements executed on and after the effective date of P.L.2006, c.103 (C.37:1-28 et al.).

   L.1988, c.99; amended 2006, c.103, s.35.

 

Construction of article. 

   a.   This article shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of the article among states enacting the "Uniform Premarital Agreement Act." 

   b.   This article shall be construed to apply to pre-civil union agreements executed on and after the effective date of P.L.2006, c.103 (C.37:1-28 et al.).

   L.1988, c.99; amended 2006, c.103, s.35.