In the recent Appellate Division decision of In the Matter of the Estate of Michael Fisher, the Appellate Court reviewed whether the Appellant and father of the Decedent, Michael Fisher, would be entitled to an intestate share of his deceased son’s estate. The main issue before the Court was whether or not the Appellant had forsaken or abandoned his son, and as a result, he would not be entitled to an intestate share of his estate under N.J.S.A. 3B:5-14.1.

This statute provides in relevant part that if a parent refused to acknowledge and/or abandoned the Decedent when he/she was a minor by willfully forsaking the child, then the aforementioned parent would not be entitled to an intestate share of the Decedent’s estate. The Appellate Division explained that the application of this statute is factually sensitive.

In this matter, the Court concluded that a parent may lose his or her right to intestate succession if this parent abandoned the Decedent when he or she was a minor by: (1) willfully forsaking the Decedent; (2) failing to care for and keep control and custody of the Decedent so that the child was exposed to physical and/or moral risk without proper and sufficient protection; or (3) by failing to care for and keep the control and custody of the Decedent which resulted with the child being left in the care and custody and control of the State at the time of death.

After examining the legislative intent in this matter, the Court concluded that, in order to willfully abandon or forsake a child, they must find that the parent, through his or her unambiguous conduct, had clearly manifested intent to permanently forego all parental duties and relinquish all parental claims to their child.

In parental termination rights cases, the burden of proof generally rests with the party seeking to terminate parental rights to demonstrate by clear and convincing evidence that such application should be granted. The Appellate Division, however, refused require that level of proof with regard to the intestate share statute. Instead, the Court found that the preponderance of evidence standard is applicable.

As a result, the Court found in this appeal that the Appellant did not willfully abandon or willfully forsake his son. There was no proof presented of affirmative actions by the Defendant which would allow the Court to reach such a conclusion. In the absence of intentional and specific conduct whereby the Defendant has intentionally and permanently willfully abandoned or forsaken his/her child, he/she would still be entitled to an intestate share of the of the Decedent’s estate.