In the Matter of the Estate of Arthur E. Brown , 448 N.J. Super. 252 ( 2017 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1086-14T4
    APPROVED FOR PUBLICATION
    IN THE MATTER OF THE ESTATE              January 26, 2017
    OF ARTHUR E. BROWN, DECEASED.
    ______________________________          APPELLATE DIVISION
    Argued September 28, 2016 – Decided January 26, 2017
    Before Judges Fuentes, Simonelli and Gooden
    Brown.
    On appeal from the Superior Court of New
    Jersey, Chancery Division, Probate Part,
    Burlington County, Docket No. 2014-0895.
    Stephanie L. DeLuca argued the cause for
    appellant Estate of Arthur E. Brown (Lenox
    Law Firm, attorneys; Ms. DeLuca, of counsel
    and on the briefs).
    Jennifer L. Cavin, Deputy Attorney General,
    argued the cause for respondent New Jersey
    Department of Human Services (Christopher S.
    Porrino, Attorney General, attorney; Melissa
    H. Raksa, Assistant Attorney General, of
    counsel; Ms. Cavin, on the brief).
    The opinion of the court was delivered by
    SIMONELLI, J.A.D.
    This appeal involves a priority lien that the Division of
    Medical Assistance and Health Services (DMAHS) filed against the
    Estate of Arthur E. Brown (Estate) pursuant to N.J.S.A. 30:4D-
    7.2 for reimbursement of $166,981.25 in Medicaid benefits Arthur
    E. Brown (Arthur)1 received from July 1, 2008, to the date of his
    death   on   April   14,   2013.     DMAHS   determined     that    the    lien
    attached to all assets in the Estate, including Arthur's one-
    third elective share against the augmented estate of his wife,
    Mary V. Brown (Mary) that included the proceeds from the sale of
    the couple's former marital home.
    Thomas M. Brown (Thomas) filed a complaint as next-of-kin,
    seeking a judgment discharging the lien pursuant to N.J.S.A.
    30:4D-7.8.     Thomas      alleged   that   because   the   elective      share
    statute, N.J.S.A. 3B:8-1, did not apply to Arthur, the lien
    claim should be satisfied from the sole assets remaining in the
    Estate, approximately $5000.         In the alternative, Thomas alleged
    that Arthur's elective share was zero when calculated pursuant
    to the elective share statutes.
    Thomas appeals from the July 29, 2014 Chancery Division
    final judgment, which denied entry of judgment discharging the
    lien, and from the September 26, 2014 order, which denied his
    motion for reconsideration.          Thomas also appeals from the May
    22, 2015 order, which established the amount of Arthur's one-
    third elective share of Mary's augmented estate.             We affirm the
    judgment and orders.
    1
    We use first names to identify the parties                for    ease   of
    reference. We mean no disrespect in so doing.
    2                              A-1086-14T4
    I.
    We begin our analysis with a review of the federal and
    state Medicaid statutes and regulations and factual background
    relevant   to    this        appeal.      Medicaid       is    a   federally-created,
    state-implemented program that provides "medical assistance to
    the poor at the expense of the public."                       Estate of DeMartino v.
    Div. of Med. Assistance & Health Servs., 
    373 N.J. Super. 210
    ,
    217   (App.     Div.     2004)       (quoting        Mistrick      v.     Div.   of   Med.
    Assistance & Health Servs., 
    154 N.J. 158
    , 165 (1998)), certif.
    denied, 
    182 N.J. 425
    (2005); see also 42 U.S.C.A. § 1396-1.
    Although a state is not required to participate, once it has
    been accepted into the Medicaid program it must comply with the
    federal Medicaid statutes and regulations.                      See Harris v. McRae,
    
    448 U.S. 297
    , 301, 
    100 S. Ct. 2671
    , 2680, 
    65 L. Ed. 2d 784
    , 794
    (1980); United Hosps. Med. Ctr. v. State, 
    349 N.J. Super. 1
    , 4
    (App. Div. 2002); see also 42 U.S.C.A. § 1396a(a)-(b).                                 The
    state must adopt "reasonable standards . . . for determining
    eligibility for . . . medical assistance [that are] consistent
    with the objectives of the Medicaid program[,]" 
    Mistrick, supra
    ,
    154 N.J. at 166 (quoting L.M. v. Div. of Med. Assistance &
    Health   Servs.,       
    140 N.J. 480
    ,    484    (1995)),      and    "provide    for
    taking into account only such income and resources as are . . .
    available to the applicant."              N.M. v. Div. of Med. Assistance &
    3                                  A-1086-14T4
    Health Servs., 
    405 N.J. Super. 353
    , 359 (App. Div.), certif.
    denied,       
    199 N.J. 517
          (2009);       see       also    42      U.S.C.A.        §
    1396a(a)(17)(A)-(B).
    New    Jersey       participates     in       the    federal      Medicaid       program
    pursuant       to    the     New   Jersey        Medical        Assistance       and     Health
    Services      Act,     N.J.S.A.       30:4D-1        to    -19.5.            Eligibility      for
    Medicaid in New Jersey is governed by regulations adopted in
    accordance with the authority granted by N.J.S.A. 30:4D-7 to the
    Commissioner of the Department of Human Services (DHS).                                    DMAHS
    is   the     agency    within      the    DHS       that    administers         the    Medicaid
    program.              N.J.S.A.        30:4D-5,            -7;     N.J.A.C.        10:49-1.1.
    Accordingly, DMAHS is responsible for protecting the interests
    of   the     New    Jersey     Medicaid         Program         and    its    beneficiaries.
    N.J.A.C. 10:49-11.1(b).               The local county welfare agency (CWA)
    evaluates eligibility.             N.J.S.A. 30:4D-7a; N.J.A.C. 10:71-1.5, -
    2.2(c).       Through that agency, DMAHS serves as a "gatekeeper to
    prevent      individuals       from      using      Medicaid      to    avoid     payment      of
    their fair share for long-term care."                            W.T. v. Div. of Med.
    Assistance & Health Servs., 
    391 N.J. Super. 25
    , 37 (App. Div.
    2007).
    DMAHS    provides       institutional          level       Medicaid       benefits      to
    individuals residing in nursing homes pursuant to the Medicaid
    Only     program,       N.J.A.C.         10:71-1.1         to    -9.5.          Among      other
    4                                       A-1086-14T4
    eligibility   requirements,   an   applicant    seeking   such   benefits
    must have financial eligibility as determined by the regulations
    and procedures.    See N.J.A.C. 10:71-1.2(a).         In order to be
    financially eligible, the applicant must meet both income and
    resource   standards.      N.J.A.C.    10:71-3.15.        Generally,     an
    individual's countable available resources cannot exceed $2000.
    N.J.A.C.   10:71-4.5(c),    -4.8(a).      The    resource    eligibility
    requirements for the Medically Needy Program, of which Arthur
    was a beneficiary, are the same as those for the Medicaid Only
    program, except the resource limit is $4000 for an individual.
    N.J.A.C. 10:70—5.1, -5.3(a).
    In the eligibility determination, the CWA considers
    all income and resources of the individual
    . . . and resources which the individual
    . . . is entitled to but does not receive
    because of action or inaction by the
    individual or . . . by any person, including
    a court or administrative body with the
    legal authority to act in place of or on
    behalf of the individual[.]
    [N.J.A.C.       10:71-4.10(b)(3)        (emphasis
    added).]
    A "resource" is defined as
    any real or personal property which is owned
    by the applicant (or by those persons whose
    resources are deemed available to him or her
    as described in N.J.A.C. 10:71-4.6) and
    which could be converted to cash to be used
    for his or her support and maintenance.
    Both liquid and non-liquid resources shall
    be   considered  in  the   determination  of
    5                             A-1086-14T4
    eligibility   unless  .  .  .  [they]  are
    specifically excluded under . . . N.J.A.C.
    10:71-4.4(b).
    [N.J.A.C. 10:71-4.1(b) (emphasis added).]
    See    also     N.J.A.C.        10:71-4.2.           A   resource        is    considered
    "available" to an individual when "[t]he person has the right,
    authority or power to liquidate real or personal property or his
    or    her    share   of    it[,]"    or    when    "resources      have       been    deemed
    available      to    the    applicant"      pursuant      to    N.J.A.C.       10:71-4.6.
    N.J.A.C. 10:71-4.1(c)(1)-(2).
    In    addition      to   requiring        participating      states      to      adopt
    regulations for determining eligibility, federal Medicaid law
    requires states "to enact certain 'estate' recovery provisions
    as    part     of    their      medical     assistance         plans."         Estate       of
    
    DeMartino, supra
    , 373 N.J. Super. at 217 (citing 42 U.S.C.A. §§
    1396a(a)(18), 1396c, 1396p(b)(1)).                   Specifically, "[i]n the case
    of an individual who was [fifty-five] years of age or older"
    when he or she received medical assistance, states are required,
    in pertinent part, to "seek adjustment or recovery from the
    individual's estate, but only for medical assistance consisting
    of . . . nursing facility services, home and community-based
    services,       and        related        hospital       and     prescription            drug
    services[.]"         42 U.S.C.A. § 1396p(b)(1)(B).               "States may recover
    Medicaid benefits after the death of the recipient's surviving
    6                                       A-1086-14T4
    spouse provided that the Medicaid recipient leaves 'no surviving
    child who is under age 21, or . . . is blind or permanently and
    totally disabled.'"        Estate of 
    DeMartino, supra
    , 373 N.J. Super.
    at 217 (quoting 42 U.S.C.A. § 1396p(b)(2)(A)).
    Further,      to     satisfy        the     federal       estate   recovery
    requirements, states must define a decedent's estate to include
    at   least   "all   real    and       personal   property    and    other    assets
    included within the individual's estate, as defined for purposes
    of   State    probate      law[.]"        42     U.S.C.A.   §     1396p(b)(4)(A).
    However,      federal       estate        recovery     requirements          permit
    participating states to adopt broader definitions of "estate"
    that may include:
    any other real and personal property and
    other assets in which the individual had any
    legal title or interest at the time of death
    (to the extent of such interest), including
    such assets conveyed to a survivor, heir, or
    assign of the deceased individual through
    joint    tenancy,    tenancy   in    common,
    survivorship, life estate, living trust, or
    other arrangement.
    [42 U.S.C.A.         §     1396p(b)(4)(B)      (emphasis
    added).]
    New Jersey has enacted statutes to comply with the federal
    estate recovery requirements.             N.J.S.A. 30:4D-7.2(a)(2) permits
    the Commissioner of DHS to file a lien "against and recovery
    sought from the estate of the deceased recipient for assistance
    correctly paid or to be paid on his behalf for all services
    7                                 A-1086-14T4
    received when he was [fifty-five] years of age or older[.]"
    Consistent with federal law, New Jersey has enacted a statute
    that defines "estate" as including
    all real and personal property and other
    assets included in the recipient's estate as
    defined in [N.J.S.A.] 3B:1-1, as well as any
    other real and personal property and other
    assets in which the recipient had any legal
    title or interest at the time of death, to
    the extent of that interest, including
    assets conveyed to a survivor, heir or
    assign   of  the  recipient   through  joint
    tenancy, tenancy in common, survivorship,
    life   estate,   living   trust   or   other
    arrangement.
    [N.J.S.A. 30:4D-7.2(a)(3) (emphasis added).]
    N.J.S.A. 30:4D-7(j) requires the Commissioner "[t]o take
    all necessary action to recover the cost of benefits correctly
    provided to a recipient from the estate of said recipient[.]"
    Accordingly, the Commissioner has adopted regulations to comply
    with the federal estate recovery requirements.          N.J.A.C. 10:49-
    14.1(d) authorizes DMAHS to "file any claim or lien against an
    estate . . . within three years after receiving actual written
    notice from the personal representative of the estate or any
    other   interested   party     of   the    death   of    the   Medicaid
    beneficiary."   Similar   to    N.J.S.A.   30:4D-7.2(a)(3),    N.J.A.C.
    10:49-14.1(l) defines "estate" as follows, in pertinent part:
    (l) For purposes of this section, the term
    "estate" with respect to a deceased Medicaid
    beneficiary shall include:
    8                          A-1086-14T4
    1.   All real and personal property and
    other    assets    included    within   the
    individual's estate, as defined in N.J.S.A.
    3B:1-1; and
    2.   For individuals who died on or after
    April 1, 1995, the term "estate" shall also
    include any other real and personal property
    and other assets in which the Medicaid
    beneficiary had any legal title or interest
    at the time of death, to the extent of that
    interest, including assets conveyed to a
    survivor, heir or assign of the beneficiary
    through joint tenancy, tenancy in common,
    survivorship, life estate, living trust or
    other arrangement, as well as any proceeds
    from the sale of any such property which
    remain in the estate of the survivor, heir
    or assign of the beneficiary, to the extent
    of the beneficiary's interest[.]
    [(Emphasis added).]
    Our role "is to interpret a federal statute in light of the
    purposes that Congress sought to achieve through its enactment."
    Estate of 
    DeMartino, supra
    , 373 N.J. Super. at 219.                     Thus, we
    must "look not only at the particular statutory language but
    also to the design of the statute as a whole."                  
    Ibid. We should interpret
    the statute "in accordance with its ordinary meaning
    and in a common sense manner so as to accomplish the purpose and
    intent   of     Congress."           
    Ibid. Congress requires that
    participating    states      adopt    estate         recovery    provisions    and
    authorized    states   to    adopt    a       more   expansive    definition    of
    "estate" "to address the increased demand for Medicaid benefits
    9                              A-1086-14T4
    from the nation's aging population."                       
    Ibid. "Allowing states to
    recover      from   the    estates       of    persons         who   previously       received
    assistance       furthers       the    broad       purpose      of     providing      for    the
    medical care of the needy; the greater amount recovered by the
    state allows the state to have more funds to provide future
    services."       
    Ibid. (quoting Belshe v.
    Hope, 
    38 Cal. Rptr. 2d 917
    ,
    925 (Cal. Ct. App. 1995)).
    In    this   case,       Arthur    and       Mary    lived      together    in      their
    jointly-owned condominium before he began living in an assisted
    living facility in April 2007, when he was seventy-eight years
    old.     On July 18, 2007, Mary executed a Last Will and Testament,
    naming       Thomas       and     his        two     siblings          as    her      residual
    beneficiaries.           Mary excluded Arthur as a beneficiary under her
    Will.
    On    February      6,    2008,       Arthur    and      Mary     executed      a    deed
    transferring Arthur's interest in the condominium to Mary.                                    On
    April       7,   2008,    Arthur       was     admitted         into    a    nursing       home,
    suffering from Alzheimer's disease, and soon thereafter applied
    for institutional level Medicaid benefits under the Medically
    Needy    Program.         The    CWA     conducted         a   resource      assessment       of
    Arthur and Mary as a married couple and determined that they had
    $141,732.24         in    total       countable        resources,           and    Mary      had
    $70,866.12        in     protected        community            spouse       assets.         The
    10                                     A-1086-14T4
    condominium and an automobile were deemed exempt resources for
    purposes of establishing Arthur's Medicaid eligibility.2                        After
    spending down his share of the couple's resources, Arthur became
    eligible for Medicaid benefits, effective July 1, 2008.                             In
    accordance        with      Medicaid     regulations,            Arthur    submitted
    applications for Medicaid benefits every six months until his
    death on April 14, 2013.
    Mary     became      ill   in    November   2009,      and    died    testate   on
    September    9,    2010.3      The    assets    in   her   estate     included      the
    proceeds from the sale of the condominium, bank accounts, and
    stock that was transferred to her after Arthur submitted his
    first Medicaid application.
    In November 2010, Thomas notified the CWA of Mary's death
    and the discovery of two life insurance policies with a combined
    2
    According to DMAHS, shortly before an institutionalized spouse
    applies for Medicaid, married couples often transfer the marital
    home to the spouse who will remain in the community. See gen.
    N.J.A.C. 10:71-4.8(a)(3).    Arthur transferred his interest in
    the condominium to Mary as a Medicaid planning technique to
    maximize resources for her.       Because Arthur and Mary held
    themselves out to DMAHS as a married couple, Mary was permitted
    to retain the condominium and automobile, as well as $70,566.12
    in other resources, as her community spousal resource allowance
    consistent with N.J.A.C. 10:71-4.8(a)(3).      DMAHS emphasizes,
    however, that the couple's transfer of the condominium was for
    Medicaid eligibility purposes only and did not mean the
    condominium was not part of Mary's augmented estate.
    3
    On September 22, 2010, the Mercer County Surrogate issued
    letters testamentary to Thomas.
    11                                  A-1086-14T4
    cash surrender value of approximately $1250, which were unknown
    to Mary at the time of Arthur's first Medicaid application.                        In
    December 2010, the CWA inquired as to whether Arthur would elect
    a spousal share against Mary's estate.                   Thomas responded that
    the   elective      share     statute        did   not    apply      to     Arthur.4
    Consequently, on January 12, 2011, the CWA notified Arthur and
    Thomas      that   Arthur's    Medicaid        benefits      would        terminate,
    effective June 30, 2011.        The CWA also notified them that Arthur
    had twenty days to request a fair hearing, his Medicaid benefits
    may continue until a final decision was rendered, and Arthur may
    be required to repay any Medicaid benefits to which he was not
    entitled.5
    The    CWA   claimed    that   Arthur's      waiving    of     the     spousal
    elective share amounted to a transfer of an available asset that
    subjected him to a penalty period of ineligibility.                         The CWA
    relied on N.J.A.C. 10:71-4.10, which provides as follows, in
    pertinent part:
    (a) An individual shall be ineligible for
    institutional level services through the
    Medicaid program if he or she (or his or her
    4
    Thomas presumably responded on Arthur's behalf pursuant to a
    power of attorney.
    5
    The CWA continued Arthur's Medicaid benefits during the
    administrative proceedings until he died.     DMAHS posits that
    this had no bearing on whether or not he was ultimately entitled
    to those benefits.
    12                                  A-1086-14T4
    spouse) has disposed of assets at less than
    fair market value at any time during or
    after the [sixty]-month period immediately
    before[.]
    . . . .
    (b) The following definitions          shall   apply
    to the transfer of assets:
    . . . .
    3.   Assets shall include all income
    and resources of the individual and of the
    individual's spouse.      Assets shall also
    include income and resources which the
    individual or the individual's spouse is
    entitled to but does not receive because of
    action or inaction by the individual or the
    individual's spouse; or by any person,
    including a court or administrative body
    with the legal authority to act in place of
    or on behalf of the individual or the
    individual's   spouse;     or   any   person,
    including a court or administrative body,
    acting at the direction of or upon the
    request    of   the    individual   or    the
    individual's spouse.     Examples of actions
    that would cause income or resources not to
    be received shall include, but shall not be
    limited to:
    . . . .
    ii. Waiving the right to receive an
    inheritance, including spousal elective
    share pursuant to N.J.S.A. 3B:8-10[.]
    [N.J.A.C.      10:71-4.10(a),            (b)(3)(ii)
    (emphasis added).]
    Thomas maintained there was no waiver because Arthur had no
    right   to    an   elective   share.        On   Arthur's   behalf,    Thomas
    requested an administrative hearing to contest the applicability
    13                             A-1086-14T4
    of N.J.A.C. 10:71-4.10(b)(3)(ii).            The matter was transferred to
    the Office of Administrative Law (OAL) for a hearing, where
    arguments relating to the applicability of the elective share
    statutes, N.J.S.A. 3B:8-1, -3, and -5, were also raised.                  Arthur
    moved for summary decision, which the Administrative Law Judge
    (ALJ) denied.        The ALJ found that Arthur was not excepted from
    N.J.S.A. 3B:8-1, the condominium was not excluded from Mary's
    augmented estate under N.J.S.A. 3B:8-5, and Arthur was subject
    to a transfer of assets penalty because he was entitled to, but
    did not claim, an elective share of Mary's estate.
    The Assistant Commissioner of DHS denied Arthur's request
    for   interlocutory      review,     and     Arthur     did   not    pursue     an
    interlocutory    appeal    to    this   court.        The   OAL   scheduled    the
    matter for a final hearing, but Arthur died before then.                       The
    Estate did not pursue the matter, and the request for a hearing
    was withdrawn a year later.
    Arthur   had    received   a   total    of   $166,981.25      in   Medicaid
    benefits from July 1, 2008, until his death on April 14, 2013.
    On July 28, 2013, DMAHS filed a priority lien claim against the
    Estate pursuant to N.J.S.A. 30:4D-7.2 for reimbursement.                        On
    November 6, 2013, DMAHS filed an amended lien claim to clarify
    that the lien attached to all assets in the Estate, including
    14                               A-1086-14T4
    Arthur's elective share against Mary's estate that included the
    proceeds from the sale of the condominium.
    Thomas, as next-of-kin, filed a complaint in the Chancery
    Division, Probate Part, for judgment discharging the lien.                         He
    contended   that   Arthur    had   no   right        to   an   elective   share    of
    Mary's estate under N.J.S.A. 3B:8-1, which entitles a surviving
    spouse to
    a right of election to take an elective
    share of one-third of the augmented estate
    under   the    limitations  and   conditions
    hereinafter stated, provided that at the
    time of death the decedent and the surviving
    spouse . . . had not been living separate
    and apart in different habitations or had
    not ceased to cohabit as man and wife,
    either as the result of judgment of divorce
    from bed and board or under circumstances
    which would have given rise to a cause of
    action for divorce or nullity of marriage to
    a decedent prior to his death under the laws
    of this State.
    [N.J.S.A. 3B:8-1.]
    Thomas argued that the statute did not apply because the right
    to an elective share was personal to Arthur and could only be
    exercised during Arthur's lifetime as per                      N.J.S.A. 3B:8-11,
    which   provides,    in     pertinent        part,    that     "[t]he     right    of
    election to take an elective share by a surviving spouse . . .
    may be exercised only during his lifetime."
    Thomas also argued the statute did not apply because Arthur
    and Mary had been living separate and apart at the time of
    15                                  A-1086-14T4
    Mary's    death,       or    ceased     to    cohabit       as   man    and    wife     under
    circumstances that gave Mary a cause of action for divorce
    under N.J.S.A. 2A:34-2(f), "[i]nstitutionalization for mental
    illness     for    a     period    of    [twenty-four]           or    more    consecutive
    months subsequent to marriage and next preceding the filing of
    the     complaint[.]"          Thomas        posited    that     N.J.S.A.       2A:34-2(f)
    applied because Arthur was institutionalized in a nursing home
    for Alzheimer's disease.
    In the alternative, Thomas contended that Arthur's elective
    share    was   zero      because       the    proceeds       from      the    sale    of    the
    condominium       were      excluded    from       Mary's    augmented        estate     under
    N.J.S.A. 3B:8-5, which provides, in pertinent part, that "[a]ny
    transfer of property shall be excluded from the augmented estate
    under [N.J.S.A.] 3B:8-3, if made with the written consent or
    joinder of the surviving spouse[.]"                         Thomas argued that this
    statute applied because Arthur willfully and in writing through
    the deed transferred his interest in the condominium to Mary.
    Thomas also contended that Arthur's elective share was zero
    because the value of all property he owned in his own right at
    the time of Mary's death is deducted from his elective share
    pursuant to N.J.S.A. 3B:8-18, which provides as follows, in
    pertinent part:
    16                                      A-1086-14T4
    The amount of the surviving spouse's . . .
    elective  share  shall   be  satisfied  by
    applying:
    a.   The value of all property, estate or
    interest therein, owned by the surviving
    spouse . . . in his own right at the time of
    the decedent's death from whatever source
    acquired, or succeeded to by the surviving
    spouse . . . as a result of decedent's death
    notwithstanding that the property, estate or
    interest or part thereof, succeeded to by
    the surviving spouse . . . as the result of
    decedent's death has been renounced by the
    surviving spouse[.]
    In a July 29, 2014 oral opinion, the trial judge reviewed
    the legislative history of N.J.S.A. 3B:8-1 and determined that
    Arthur   did   not    fall    within   the   excepted   class   of   surviving
    spouses who cannot elect against the deceased spouse's estate
    under the statute.           The judge rejected Thomas's argument that
    Arthur had no right to an elective share because he and Mary had
    been living separate and apart at the time of her death.                    The
    judge found that the couple was not divorced, never filed for
    divorce, and never intended to file for divorce; rather, because
    of Arthur's Alzheimer's disease, the couple decided that Arthur
    would first reside in an assisted living facility and thereafter
    a nursing home.       Citing In re Estate of Hersh, 
    195 N.J. Super. 74
    , 77 (App. Div.), certif. denied, 
    99 N.J. 185
    (1984), the
    judge    determined    that     mere   physical   separation    because     one
    spouse was residing in a nursing home was not by itself enough
    17                             A-1086-14T4
    to prevent that spouse from claiming an elective share.                                The
    judge emphasized there was nothing in the legislative history of
    N.J.S.A. 3B:8-1 that intended such a result.
    The judge also rejected Thomas's argument that Arthur had
    no right to an elective share because he and Mary ceased to
    cohabit as man and wife, thus giving Mary a cause of action for
    divorce     under    N.J.S.A.     2A:34-2(f).        The   judge        considered       a
    physician's affidavit stating that Arthur was not competent to
    handle his affairs as of July 2008, but found Arthur was not
    institutionalized in a psychiatric facility and there was no
    guardianship        application    or     judgment    of       incapacity       and     no
    evidence of his level of capacity prior to Mary's death.
    The judge declined to hold that every couple would qualify
    for divorce when one spouse suffers from Alzheimer's disease,
    because depriving that spouse of the spousal share "would leave
    vulnerable adults with an inability to access assets that might
    be necessary for their care.               This was not the intent of the
    [L]egislature."        Citing I.G. v. Dep't of Human Servs., 386 N.J.
    Super. 282, 291 (App. Div. 2006), the judge also determined that
    "where there are limited assets . . . without access to the
    elective share, the practical effect is for . . . the cost of
    care   to   be   shifted   upon     the    taxpayers.      .    .   .   There     is   no
    indication this was the intent of the [L]egislature either."
    18                                    A-1086-14T4
    The judge emphasized there was no evidence of marital discord;
    rather, through Medicaid planning, Arthur and Mary had worked
    together to protect each other by securing assets for their
    future use.         The judge concluded that the elective share was
    available to Arthur even though he was residing in a nursing
    home.
    The   judge     also    found    that       despite      Arthur        having    never
    exercised     the     elective      share     during         his    lifetime,     it     was
    available to him and his ability to exercise that right while
    alive   was     not      excepted    from        N.J.S.A.      3B:8-1.         The     judge
    concluded that DMAHS's broad estate recovery powers entitled it
    to seek reimbursement of the Medicaid benefits an individual
    received even where he or she did not pursue the elective share
    while alive.
    Lastly,      the    judge     found   that       the    transfer       of   Arthur's
    interest in the condominium to Mary was not a transfer within
    the   ambit   of      N.J.S.A.      3B:8-3,       as   that        statute    applies     to
    transfers     by      the     decedent,          not    the         surviving        spouse.
    Accordingly, the judge held that the proceeds from the sale of
    the condominium were included in Mary's augmented estate and
    there was no basis to discharge the priority lien against the
    Estate, as Arthur's elective share of Mary's augmented estate
    19                                    A-1086-14T4
    was part of the Estate.              The judge memorialized her decision in
    a final judgment entered on July 29, 2014.
    Thomas filed a motion for reconsideration, arguing that the
    judge: (1) failed to calculate Arthur's elective share under
    N.J.S.A. 3B:8-15; (2) incorrectly found that DMAHS had advised
    Arthur that the elective share statute applied in determining
    his    Medicaid      eligibility;         and    (3)    overlooked      the   effect      of
    N.J.S.A. 2A:34-2(f) on limiting Arthur's right to an elective
    share under N.J.S.A. 3B:8-1.                In a September 26, 2014 order and
    written      opinion,      the    judge    denied       the   motion,       finding    that
    Thomas      had    not    requested   a     calculation       of     Arthur's      elective
    share and presented nothing new to warrant reconsideration.
    Thomas      appealed.       Following       a     Civil      Appeals   Settlement
    Program      conference,      we    remanded       the    matter      for   the     limited
    purpose     of     calculating     Arthur's       elective       share.       On    remand,
    Thomas      calculated      Mary's    estate       at    $17,507.41,        comprised     of
    $15,988.12         from     two    bank         accounts      and      $1,519.29       from
    miscellaneous other property.               He excluded the proceeds from the
    sale   of    the    condominium,      the       value    of   the    stocks     that   were
    transferred to Mary, and the value of her joint bank account
    with Arthur.
    In    the    alternative,      Thomas      calculated         Mary's    estate     at
    $244,347.55, which included the previously excluded assets and
    20                                     A-1086-14T4
    other property.        Thomas then deducted $70,430.32 for expenses
    incurred    by     Mary's   estate,   and    calculated         her   net    augmented
    estate   at      $173,917.23.       Thomas     then   averred         that    Arthur's
    elective share of Mary's augmented estate was $25,870.85, at the
    most, and that the following assets Arthur owned at the time of
    Mary's   death      must    be   deducted    from   that    amount      pursuant     to
    N.J.S.A. 3B:8-18(a):
    1.    Checking Account                        $3,563.21
    2.    Personal Needs Account                     221.12
    3.    New Jersey Group Life
    Ins. Policy                               6,726.87
    4.    Pre-paid Funeral Trust                      9,626.01
    5.    Pre-paid Mausoleum                          5,610.006
    6.    New Jersey Death Benefit                    2,073.07
    7.    Prudential Ins. Policy                      4,281.28
    Total                $32,101.56
    Thomas concluded that Arthur's elective share was zero after
    deducting these assets.
    In a May 22, 2015 written opinion, the judge calculated
    Mary's augmented estate at $184,861.58, comprised of $261,848.40
    in total estate assets minus $76,986.82 in estate expenses.                         The
    judge noted she had previously ruled that the proceeds from the
    sale   of   the     condominium     were     included      in     Mary's     augmented
    estate, and found that Thomas had excluded assets that were
    6
    The judge re-calculated the pre-paid mausoleum at $5175.
    21                                    A-1086-14T4
    included under N.J.S.A. 3B:8-3(a), -6, and -7, including the
    transferred stocks, an IRA, and two insurance policies.
    The    judge     then    calculated      Arthur's   elective     share     at
    $48,379.92, comprised of one-third of Mary's augmented estate
    ($61,620.53) minus the assets Arthur owned at the time of Mary's
    death, which the judge calculated at $13,240.61.                     The judge
    declined to deduct the New Jersey Group Life Insurance Policy,
    pre-paid   funeral    trust,     and   New    Jersey    Death     Benefit    from
    Arthur's elective share, finding that N.J.S.A. 3B:8-18(a) only
    permitted the deduction of assets owned by Arthur at the time of
    Mary's death.      The judge reasoned that Arthur did not own or
    control these assets at the time of Mary's death, and had no
    control over and was unable to derive any benefit from them
    during his lifetime.         The judge memorialized her decision in an
    order entered on May 22, 2015.
    Thomas appeals from the July 29, 2014 final judgment, and
    from the orders entered on September 26, 2014, and May 22, 2015.
    On appeal, he reiterates the arguments made to the trial judge.
    Because this appeal involves the judge's interpretation of
    the Medicaid and elective share statutes, our review is de novo.
    Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins. Co. v. Pa.
    Mfrs.' Ass'n Ins. Co., 
    215 N.J. 409
    , 421 (2013).                  However, the
    trial   court's    factual    findings      "are   binding   on    appeal    when
    22                              A-1086-14T4
    supported by adequate, substantial, credible evidence."              
    Ibid. (quoting Cesare v.
    Cesare, 
    154 N.J. 394
    , 411-12 (1998)).
    As for the denial of a motion for reconsideration, we have
    held that
    [r]econsideration itself is a matter
    within the sound discretion of the [c]ourt,
    to   be   exercised   in    the    interest   of
    justice[.]     It is not appropriate merely
    because a litigant is dissatisfied with a
    decision of the court or wishes to reargue a
    motion, but should be utilized only for
    those cases which fall into that narrow
    corridor in which either 1) the [c]ourt has
    expressed its decision based upon a palpably
    incorrect or irrational basis, or 2) it is
    obvious that the [c]ourt either did not
    consider,   or   failed   to    appreciate   the
    significance     of    probative,      competent
    evidence.
    [Palombi v. Palombi, 
    414 N.J. Super. 274
    ,
    288 (App. Div. 2010) (citations omitted).]
    We will not disturb a trial court's reconsideration decision
    absent a clear abuse of discretion.          Pitney Bowes Bank, Inc. v.
    ABC Caging Fulfillment, 
    440 N.J. Super. 378
    , 383 (App. Div.
    2015) (citation omitted).        An abuse of discretion "arises when a
    decision is made without a rational explanation, inexplicably
    departed       from     established    policies,   or   rested      on   an
    impermissible basis."        Flagg v. Essex Cnty. Prosecutor, 
    171 N.J. 561
    ,    571    (2002)    (citation    omitted).    Applying   the    above
    standards, we discern no reason to disturb any of the judge's
    rulings.
    23                         A-1086-14T4
    II.
    A.
    Thomas argues that the Estate had no right to an elective
    share of Mary's augmented estate under N.J.S.A. 3B:8-1 because:
    (1) Arthur and Mary had been living separate and apart at the
    time of her death; and (2) the couple ceased to cohabit as man
    and wife under circumstances that gave Mary a cause of action
    for divorce under N.J.S.A. 2A:34-2(d) (separation for at least
    eighteen months), or N.J.S.A. 2A:34-2(f) (institutionalization
    for   mental    illness        for    a   period    of   twenty-four       or   more
    consecutive months).           These arguments lack merit.
    A surviving spouse is entitled to an elective share of one-
    third of the deceased spouse's augmented estate provided that at
    the time of the decedent's death the couple "had not been living
    separate and apart in different habitations or had not ceased to
    cohabit as man and wife, either as the result of judgment of
    divorce from bed and board or under circumstances which would
    have given rise to a cause of action for divorce[.]"                        N.J.S.A.
    3B:8-1.        The    object         of   the     statute      was   to    prohibit
    disinheritance       of    a    surviving       spouse   who    needs     continuous
    support.   McKay v. Estate of McKay, 
    205 N.J. Super. 609
    , 618
    (Law Div. 1984).          The effect of the statute "was to drastically
    alter the preexisting law and provide a surviving spouse with an
    24                                A-1086-14T4
    option to take one-third of the estate if he or she were not
    adequately provided for by the decedent."                            Estate of 
    Hersh, supra
    , 195 N.J. Super. at 77.
    N.J.S.A.       3B:8-1      prevents    a        spouse,       if     divorced,     from
    claiming the right to share in the decedent's estate, and also
    prevents a spouse from such entitlement if the parties no longer
    live together and were "embarked on a divorce action with good
    cause prior to [the spouse's] death[.]"                       Carr v. Carr, 
    120 N.J. 336
    , 345-46 (1990).          Hence, a separation without a judgment of
    divorce or cause of action for divorce can disqualify a spouse
    from being entitled to an elective share.                      
    Ibid. However, there must
    be evidence, beyond mere separation, of a cause of action
    for divorce to disqualify a surviving spouse from elective share
    rights.      
    Id. at 344
    (citing 
    McKay, supra
    , 205 N.J. Super. at
    621; Estate of 
    Hersh, supra
    , 195 N.J. Super. at 77-78).                                 Mere
    separation    is    not   enough.      There         must     be    evidence     that   the
    relationship was "sufficiently removed from the normally thought
    of   state     of     matrimony      as         to     make        such     an   election
    inappropriate."       Estate of 
    Hersh, supra
    , 195 N.J. Super. at 77.
    We have described this situation "as a quasi-divorced state—a
    separation     either      by     judicial           decree     or      accompanied      by
    circumstances which would have enabled the decedent to obtain a
    divorce."     
    Ibid. 25 A-1086-14T4 In
    Estate of Hersh, the couple separated by mutual consent,
    were separated for over thirty years, the surviving spouse had
    obtained a judgment of separation from bed and board in New York
    where the parties were married, and the deceased spouse had
    remarried.      
    Id. at 76.
        We determined that the surviving spouse
    had no right to an elective share of the decedent's estate under
    N.J.S.A. 3B:8-1 because the evidence showed that the parties
    were vested with a cause of action for divorce.          
    Id. at 79.
    In Carr, the couple separated thirteen months prior to the
    wife having filed a complaint for 
    divorce. 120 N.J. at 340
    .
    The wife was subsequently awarded pendente lite support, among
    other things.     
    Ibid. The husband died
    before the divorce action
    concluded, and left his entire estate to his children.                 
    Ibid. The Court held
    that because the parties had separated and the
    wife had embarked on a divorce action with good cause prior to
    the husband's death, the wife was not entitled to an elective
    share of the husband's estate under N.J.S.A. 3B:8-1.
    Here, although living separate and apart for approximately
    three   years     at   the    time   of   Mary's   death,     the   couple's
    relationship     was   not    sufficiently   removed   from   the   normally
    thought of state of matrimony that would preclude Arthur from
    claiming an elective share of Mary's estate.             Estate of 
    Hersh, supra
    , 195 N.J. Super. at 77.         There was no evidence whatsoever
    26                             A-1086-14T4
    of     marital   problems        or   discord,    or    that    the       couple     was
    estranged, no longer considered themselves husband and wife, had
    no intention of continuing their marriage, and considered their
    marriage "dead."            See Altbrandt v. Altbrandt, 
    129 N.J. Super. 235
    , 237-38 (Ch. Div. 1974) (holding that the purpose of divorce
    on the ground of separation is to "terminate dead marriages"
    where the relationship "has so far deteriorated" that one party
    seeks a divorce).
    Arthur and Mary were married for approximately fifty-nine
    years and there was nothing suggesting that Mary was seeking or
    even     considering        a   divorce     because    she     and       Arthur     were
    separated.       Rather, the only reason for the couple's physical
    separation       was    the     unfortunate      circumstances           of   Arthur's
    Alzheimer's disease.            We conclude that this is not the type of
    situation giving rise to a cause of action for divorce under
    N.J.S.A. 2A:34-2(d).            There was nothing more than the couple's
    mere separation, which is not enough.
    Nor is this the type of situation that would constitute
    grounds for divorce under N.J.S.A. 2A:34-2(f).                       See E. v. F.,
    
    118 N.J. Super. 491
    , 493-95 (Ch. Div. 1972) (examining mental
    illness,     such      as   paranoid      schizophrenia,       as    a    ground     for
    divorce).        Although       Arthur's   medical     condition         rendered    him
    unable to manage himself or his affairs, it did not render him
    27                                 A-1086-14T4
    unable to elect against Mary's estate.                   More importantly, Mary
    never sought to divorce him because he had Alzheimer's disease
    or for any other reason.            Thomas cites no authority to support
    his view that N.J.S.A.            2A:34-2(f) applies to a nursing home
    resident suffering from Alzheimer's disease or that this statute
    precluded Arthur from claiming his elective share.                               We have
    found nothing in the statutory language or legislative history
    of N.J.S.A. 3B:8-1, or in case law, that supports such a result.
    Accordingly, we conclude the trial judge correctly found that
    Arthur   was     not    excepted    from    his    elective       share     of    Mary's
    augmented estate under N.J.S.A. 3B:8-1.
    B.
    Thomas       next    argues    that    the    Estate    had    no   right      to    an
    elective share of Mary's augmented estate because that right was
    personal    to    Arthur    and    could    only    be     exercised      during        his
    lifetime as per N.J.S.A. 3B:8-11.                This argument lacks merit as
    well.
    Contrary       to    Thomas's     position,      this     is    not     a     matter
    involving   a    creditor    seeking       to    recover    against     a   surviving
    spouse's elective share, see Aragon v. Estate of Snyder, 
    314 N.J. Super. 635
    , 640 (Ch. Div. 1998), nor is it a probate or
    estate matter.         See In re Estate of Wilma Bilse, 
    329 N.J. Super. 158
    (Ch. Div. 1999), aff'd o.b., 
    329 N.J. Super. 118
    (App. Div.
    28                                     A-1086-14T4
    2000).      This    matter    involves    a    Medicaid     recipient     and    is
    governed by broad federal and state Medicaid estate recovery
    provisions.      Federal Medicaid law requires participating states
    to recover benefits paid for nursing facility services from a
    deceased    Medicaid     recipient's          estate.        42     U.S.C.A.      §
    1396p(b)(1)(B).      State law empowers the Commissioner to file a
    lien and recover against an estate for Medicaid benefits paid to
    the   deceased     Medicaid   recipient.         N.J.S.A.    30:4D-7.2(a)(2);
    N.J.A.C. 10:49-14.1(d).         An estate includes not only assets in
    an estate, as defined under state probate law, but also any
    other assets in which the Medicaid recipient had any legal title
    or interest at the time of his death.             N.J.S.A. 30:4D-7.2(a)(3);
    N.J.A.C. 10:49-14.1(a).
    Arthur's elective share of Mary's augmented estate was an
    asset in which he had legal title or interest at the time of his
    death, and it was an asset that was available to him during his
    lifetime.     Accordingly, we conclude the trial judge correctly
    found that the elective share was part of Arthur's estate and
    subject to a Medicaid lien.
    III.
    A.
    In   the   alternative,    Thomas       first     argues    that   Arthur's
    elective share was zero because the proceeds from the sale of
    29                                  A-1086-14T4
    the condominium were excluded from Mary's augmented estate under
    N.J.S.A.      3B:8-5,   as    they     were   transfers       of   property    with
    Arthur's written consent (the deed) and joinder.                   We disagree.
    The augmented estate under N.J.S.A. 3B:8-1
    means the estate reduced by funeral and
    administration   expenses,  and  enforceable
    claims, to which is added the value of
    property transferred by the decedent at any
    time during the marriage . . . to or for the
    benefit of any person other than the
    surviving spouse . . . to the extent that
    the decedent did not receive adequate and
    full consideration[.]
    [N.J.S.A. 3B:8-3 (emphasis added).]
    However, any transfer of property by the decedent pursuant to
    N.J.S.A. 3B:8-3 is excluded from the augmented estate "if made
    with the written consent or joinder of the surviving spouse[.]"
    N.J.S.A. 3B:8-5.
    The decedent, Mary, did not transfer her one-half interest
    in   the    condominium      to    Arthur.    She    merely    signed    the   deed
    transferring his one-half interest to herself, and she at all
    times      maintained   her       ownership   of    the   property.      Arthur's
    transfer of his interest in the condominium "was not a transfer
    within the ambit of N.J.S.A. 3B:8-3 because that statute applies
    to transfers by the decedent, not the surviving spouse."                      Estate
    of 
    DeMartino, supra
    , 373 N.J. Super. at 220, n.1.                        The same
    analysis applies to the stocks and bank accounts transferred to
    30                               A-1086-14T4
    Mary    with    Arthur's      consent.         We      reject    Thomas's    tortured
    interpretation of N.J.S.A. 3B:8-3 that a transfer by deed from
    Mary    and    Arthur   jointly     to    Mary      individually     constitutes       a
    transfer of property by the decedent with the written consent or
    joinder of the surviving spouse.               Consequently, we conclude the
    trial judge correctly found that the proceeds from the sale of
    the    condominium      and   the   stocks       and     bank   accounts     were    not
    excluded from Mary's augmented estate under N.J.S.A. 3B:8-3 and
    -5.
    B.
    Lastly, Thomas argues that the $6,726.87 New Jersey Group
    Life    Insurance       Policy,     the    $9,626.01         irrevocable     pre-paid
    funeral trust, and the $2,073.07 New Jersey Death Benefit should
    be deducted from Arthur's elective share pursuant to N.J.S.A.
    3B:8-18(a).       Thomas does not challenge the judge's use of the
    elective share formula in N.J.S.A. 3B:8-1, -3, and -18.                       Rather,
    he argues the judge incorrectly found that these assets had no
    value    to    Arthur    at   the   time    of      Mary's      death.      Again,    we
    disagree.
    N.J.S.A.     3B:8-18(a)      applies         to    "[t]he    value     of     all
    property, estate or interest therein, owned by the surviving
    spouse . . . in his own right at the time of the decedent's
    death from whatever source acquired, or succeeded to by the
    31                                  A-1086-14T4
    surviving   spouse   .   .   .   as   a    result    of   decedent's   death[.]"
    (Emphasis added); see also In re Estate of Cole, 
    200 N.J. Super. 396
    , 403 (Ch. Div. 1984).          Arthur did not own in his own right,
    have control over, or derive any benefit from the New Jersey
    Group Life Insurance Policy, pre-paid irrevocable funeral trust,
    or New Jersey Death Benefit at the time of Mary's death.                       Had
    these assets been available to Arthur when Mary died, which they
    were not, he would have exceeded the $4000 resource threshold,
    making   him   ineligible    for      Medicaid      benefits   and   subject    to
    reimbursement.       N.J.A.C.    10:70-5.1;         N.J.A.C.   10:71-4.5(c),     -
    4.8(a), -5.3(a).
    Affirmed.
    32                            A-1086-14T4