Change of Domicile is a Tricky Business

The Massachusetts estate tax system, and the notorious New England weather, are two reasons that many older residents decide to move to warmer climates.  Since some warm-weather states, like Florida, don’t have state estate tax systems, folks from Massachusetts with larger estates can often save quite a bit of money (and work on their tans) if they move out of the Commonwealth.  However, moving out of Massachusetts is not always easy, especially if a resident lacks the mental capacity to move.

The question of legal domicile can be quite tricky and often comes down to a judge’s determination of a person’s intent to remain in, or return to, the Commonwealth.  If a couple sells their house in Massachusetts, packs up all of their belongings and moves to Florida where they register to vote, pay taxes, and get drivers licenses, and they never return to Massachusetts, then it is usually pretty clear that they have intended to permanently reside in Florida.  However, when someone lacks the capacity to make a decision to move, things get tricky.

Massachusetts courts have often found that a person who is incapable of making decisions for herself lacks the intent to change her domicile, and therefore an incapacitated person who moves out of state, usually with family assistance, can end up being considered a Massachusetts resident long after she has physically left the state.

That’s what happened to Adele Paskevich.  Ms. Paskevich was under guardianship in Massachusetts, but she moved to a Florida nursing home at the bequest of her guardian.  Ms. Paskevich brought a small suitcase with her, but kept two properties in Massachusetts, along with bank accounts and some personal property.  Ms. Paskevich stayed in the Florida nursing home for eleven years and never returned to the Commonwealth, yet when she died a Massachusetts probate court determined that she was not competent to change her domicile when she left Massachusetts, and therefore she remained domiciled in Massachusetts.  The Massachusetts Appeals Court upheld the probate court’s findings in a recent summary opinion.  (Ferrari v. Paskevich, Mass.App.Ct. No. 11-P-631, May 21, 2012).

The Massachusetts Department of Revenue has doggedly pursued these types of cases in an effort to assess estate taxes against the estates of long-gone residents, often claiming that people who move with the assistance of agents using a Durable Powers of Attorney lacked the capacity to leave the Commonwealth.

It is much easier to clearly establish your intent to leave the Commonwealth than it is to argue with the government about it later.  If you are thinking about moving, or if you want to assist a loved one with his or her move, you should speak with an attorney at Brown & Brown P.C. first.  We can provide you with all of the information and assistance that you need to make sure that your intentions are clearly documented and your ties with the state are properly severed.  While we’ll hate to see you go, we’d rather help you now than fight with the government or your disgruntled heirs about your domicile down the line.

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