NJ Appellate Division Addresses the Interplay of Family and Intestacy Law

In the Matter of the Estate of Louis M. Acerra, 2017 N.J. Super. No. A-1955-15T1, 2017 WL 6048117 (N.J. Super. Ct. App. Div. Dec. 7, 2017).

This unpublished Appellate Division case is an example of the intersection between family law and estate law. In particular, this matter involves litigation regarding the administration of an intestate estate.


Decedent Louis M. Acerra (the “Decedent”) died intestate on January 17, 2012 at the age of thirty. He had never been married and had no children or siblings.  He was pre-deceased by his mother who died in 2009 and his maternal grandparents.  His biological father was unknown.

At his death, Decedent was survived by his aunt Phyllis Wallace, and his uncle Mark Acerra, who were born to the same parents as his mother, and were his aunt and uncle by the whole-blood. In addition, he was survived by Sharon Mego, Suzanne Simons, Gayle Oka, Mary J. Cavanagh, and Eileen Sippel, who were the biological daughters of his maternal grandmother, but not his maternal grandfather and, thus, were aunts by the half-blood. Id. at *4.

Decedent was also survived by Richard Litwin (“Litwin”). Litwin was in a relationship with Decedent’s mother at the time of Decedent’s birth in 1981.  Litwin lived with Decedent’s mother until she passed away and lived with Decedent his entire life.  He raised Decedent as if he was his own son, providing him with food and shelter, and assisting with his college tuition.  On March 21, 1995, a Court Order awarded Litwin custody when Decedent was fourteen years old.  However, Litwin was not Decedent’s stepfather since he never married Decedent’s mother and he never legally adopted Decedent.  Genetic testing conducted in 1990 confirmed Litwin was not Decedent’s biological father. Id. at *5.

In 2009, Decedent suffered serious injuries in a house fire caused by a defective dishwasher. He survived for two years after the fire until finally succumbing to his injuries in or around January of 2012.  From the time of the fire until Decedent’s passing, Litwin cared for Decedent, paid for his living expenses, and arranged for doctors’ appointments. Id.

Following the fire, Litwin filed a lawsuit, individually and on Decedent’s behalf, against the manufacturer of the dishwasher and other defendants, alleging negligence. A global settlement was reached as to the personal injury litigation, with the Decedent’s estate receiving an award of $4,706,250 less costs and attorney’s fees, and Litwin receiving $3,956,250 less costs and attorney’s fees. Id. at *6.


Litwin commenced litigation on May 15, 2015 seeking to be declared Decedent’s legal father under the New Jersey Parentage Act, N.J.S.A. § 9:17-38, 2-58, so he could inherit Decedent’s estate.  Litwin claimed to have equitably adopted the Decedent and argued that he was the Decedent’s psychological father.

In response, Mark Acerra (and later Phyllis Wallace) – again Decedent’s aunt and uncle by the whole-blood – filed an answer and counterclaim seeking distribution of Decedent’s estate pursuant to the intestacy statute, as well as opposition to Litwin’s application to be declared Decedent’s father.

On September 28, 2015, the trial court entered an Order dismissing Litwin’s Complaint with prejudice finding that he was not the father of the Decedent and was not entitled to inherit from Decedent’s estate. Around that time, Sharon Mego, Suzanne Simons, Gayle Oka, Mary J. Cavanagh, and Eileen Sippel – Decedent’s aunts by the half-blood – also filed answers and counterclaims asserting that they were entitled to inherit by representation under the New Jersey intestacy statute.

The trial court judgment of December 11, 2015 held among other things that: (1) Litwin had failed to prove his status as Decedent’s legal father; (2) Litwin’s Complaint was dismissed with prejudice; (3) Litwin’s application for an award of attorney’s fees from the estate was denied; (4) the substitute administrator was ordered to conduct a genealogical search for potential heirs of the estate; and (5) it was declared that relatives of the half-blood and whole-blood take equally under the intestacy statutes. After Litwin filed several motions for reconsideration, all which were denied the instant appeal followed. Id. at *8.


  1. Litwin’s Parentage

Phyllis Wallace and Mark Acerra, the aunt and uncle by whole-blood, filed an appeal raising the argument that the trial court erred in concluding that the Decedent’s estate should be divided equally amongst relatives of the half-blood and the whole-blood. In a cross appeal, Litwin raised several arguments boiling down to him being entitled to inherit the Decedent’s estate.

The first issue the Appellate Division addressed was Litwin’s claim that he should be declared the sole heir of Decedent’s estate because he was the presumed father of the Decedent under the Parentage Act.   The Parentage Act defines the “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations.  It includes the mother and child relationship and the father and child relationship”. Id. at *12.  The relationship between a child and the natural father may be established by various methods, including prior paternity adjudication, execution of a certificate of parentage prior to birth, default judgment, court order, scientific testing or proof of adoption.

Litwin’s argument was that while he is not Decedent’s natural or adoptive father, he was Decedent’s presumed father pursuant to the presumptions of paternity found in N.J.S.A. § 9:17-43(a) which provides a man is presumed to be the biological father of a child if:

(4) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child;

or (5) While the child is under the age of majority, he provides support for the child and openly holds out the child as his natural child.

The Appellate Division reasoned that this above presumption can be rebutted by a court order terminating a presumed father’s paternal rights or by establishing another man is the biological or adoptive father. Id. at *13.  The Court noted that genetic testing in 1990 determined Litwin was not the Decedent’s biological father, which constitutes clear and convincing proof to rebut the presumption.

Next, Litwin argued he was entitled to inherit Decedent’s estate under N.J.S.A. § 3B:5-14.1, which provides, in part, that a parent of a decedent shall lose all right to intestate succession if the parent refuses to acknowledge decedent, abandoned the decedent when the decedent was a minor by failing to care for, keep the control and custody of the decedent so decedent was exposed to physical or moral risk without proper and sufficient protection. Id. at *15.    He argued that the equitable principles in the statute should apply to aunts and uncles.

The Appellate Division found that plain meaning of the statute did not support Litwin’s claim to inheritance. N.J.S.A. § 3B:5-14.1 applies to parents, not relatives such as aunts and uncles.  In addition, Decedent’s aunts and uncles committed no such abusive acts or other wrongdoings nor were they under a duty to support the Decedent after the death of his mother. Id. at. *16.

Litwin also contended that as Decedent’s psychological father, he should inherit the same intestate share as if he was the Decedent’s biological or adoptive father. The Appellate Division disagreed, finding that “acting as a child’s psychological parent does not confer a parent and child relationship for purposes of intestate succession”. Id. at *17.  Further, the Court noted that courts have not applied the concept of psychological parentage beyond custody, visitation, and child support matters.  The Court also concluded that applying the psychological parent concept to intestate succession is inconsistent with the underlying purpose of the Parentage Act, which is to insure that children born out of wedlock are treated the same as those born to married parents and to provide a procedure to establish parentage in disputed cases. Id. at *19.

The Appellate Division noted that it is not the role of the court to stretch the doctrine of psychological parent to the statutory area of intestacy law. When a decedent leaves no Will, distribution of his or her estate must be in accordance with the order specified in the intestacy statute even when the decedent expresses a contrary intent. Id. at *20.

The laws of intestacy are not mandated by the State but, rather, come into effect only when a decedent fails to divise his estate by will. They are a method of distribution by default.  For those dissatisfied with distribution by intestacy, the simple answer is to execute a will.  That option was fully available to [D]ecedent who was twenty-eight years old when the fire occurred and thirty years old when he died.  Had he desired Litwin to be his heir, he could have executed a will bequeathing some or all of his estate to him.”

Id at *21 (internal citations omitted).

Finally, Litwin argued that he was entitled to inherit the estate because he equitably or constructively adopted the Decedent. While New Jersey recognizes the Doctrine of Equitable Adoption as a theory of inheritance under intestacy, courts generally require proof of an agreement to adopt.  In this case that Litwin had not established clear and convincing evidence that an agreement to adopt ever existed.   Id. at *25. 

2. Attorney’s Fees

Litwin also appealed the trial court order as to the denial of an award of attorney’s fees from the estate pursuant to R. 4:42-9(a)(3) and out of a fund in court pursuant to R. 4:42-9(a)(2).  The Appellate Division upheld the trial court order finding that Litwin was not entitled to attorney’s fees under either rule.

Litwin was not contesting the validity of a Will or Codicil but rather he was litigating his claim to a distributive share as an intestate heir.

His claim lacked merit and was denied. Defending against Litwin’s claim caused the estate to incur substantial attorney’s fees.  Had he succeeded, the legal services performed by his attorney would have benefited only him, not the estate.  Under these circumstances, Litwin did not qualify for an award of attorney’s fees.

Id. at *26.

During oral argument, Litwin argued – for the first time – that he should be awarded attorney’s fees also under the fund in court doctrine; however, it was not briefed by him. Thus, the Appellate Division did not consider the claim, deeming it have been waived and abandoned because it was not addressed in his brief. Id. at *28.

3. The Other Heirs

Lastly, the Appellate Division addressed the whole-blood aunt and uncle’s claims that the trial court erred by ruling relatives of a half-blood inherit equally with relatives of the whole-blood. The Court looked to N.J.S.A. § 3B:50-4, which governs the intestate share of heirs, other than a surviving spouse or domestic partner, and in relevant part provides:

If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants or grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.

Id. at *29.

The Court found that the intent of the Legislature was clear and unambiguous that relatives of half-blood and whole-blood should inherit equally. Thus, the Appellate Division affirmed the trial court’s ruling that the intestate relatives of the half-blood take equally with relatives of the whole-blood.