This is an accounting proceeding wherein the administrator, Rossa Chiffon Evans (hereinafter the administrator), has petitioned for the judicial settlement of her account and an order determining that J. H. is not a distributee upon the ground that her adoption ended her right of inheritance from the decedent.

Bennie Beble Evans died intestate on August 2, 2006 seized of real property in both New York and Virginia.

The decedent had five children: Lonnie Evans, the administrator, Iris Gordon (hereinafter Gordon), Bennie Evans, Jr. and Larry Evans. Larry Evans predeceased the decedent on May 1, 2002 survived by three children: Kimberly Jones, Tyisha Evans and Quadeer Anwar Nelson. The record further reflects that Larry Evans had another child, J. H., who was born on ___________ 1995. On March 7, 2002, J. H. was adopted by K. H., who bears no familial relationship to the decedent.

The administrator received letters of administration by Decree of this court dated September 19, 2006. On September 30, 2009, the administration filed an intermediate account and petitioned for its judicial settlement. Objections to the administrator's account were filed by the decedent's daughter, Gordon. The pleading parties resolved their differences in a stipulation dated October 26, 2010 filed with the court. Accordingly, the objections of Gordon are hereby withdrawn.

Still pending for the court's determination is the administrator's request that J. H. be excluded as a distributee. A status hearing was held regarding J. H.'s status as a distributee of [*2]this estate. The administrator testified on her own behalf and called one other witness: Lonnie Evans (the decedent's son). J. H. called no witnesses.

Where the status of an alleged distributee is challenged, the claimant has the burden of persuading the trier of fact that she is related to the decedent (Matter of Dugro, 261 App Div 236 [1st Dept 1941] affd 287 NY 595 [1941]; Matter of Opperman, 115 NYS 503 [Sur Ct, Queens County 1950]).However, based upon the allegations of the parties, the court must first determine the appropriate state's laws to apply. The decedent died with property in both New York and Virginia. The manner in which real property descends when not disposed of by will is determined by the law of the jurisdiction in which the land is situated (EPTL 3-5.1 (b) (1)). The manner in which personal property descends when not disposed of by will is determined by the law of the jurisdiction in which the decedent was domiciled at death (EPTL 3-5.1 (b) (2)).

Therefore, the decedent's real property in Virginia would be distributed pursuant to the laws of Virginia and the decedent's real property in New York would be distributed applying the laws of New York (EPTL 3-5.1 (b) (1); see Matter of Parisi, 111 AD3d 941 [2d Dept 2013]). In any event, this accounting is an intermediate accounting and the petitioner is not requesting distribution of the Virginia property herein. Therefore, the court is not making a determination regarding J. H.'s status as a distributee with regards to the Virginia real property. Upon the filing of the administrator's final account, the administrator may make a request for a determination regarding the Virginia real property or the administrator may seek appropriate relief from the courts in Virginia.

The personal property in this estate must distributed pursuant to the laws of the decedent's domicile. The petitioner argues that the decedent was domiciled in New York, while J. H. argues that the decedent was domiciled in Virginia. A domicile is defined as a fixed, permanent and principal home to which a person wherever temporarily located always intends to return (SCPA 103 (15)). A person may have several residences, but only one domicile at any particular time (King v Car Rentals, Inc., 29 AD3d 205 [2d Dept 2006]). An individual's existing domicile continues until a new one is acquired and the burden of proof rests upon the party alleging the change (Matter of Newcomb, 192 NY 238 [1908]). To meet this burden, the party asserting the change, must establish, by clear and convincing evidence, the decedent's intention to effect a change of domicile from his acts, statements and conduct (Matter of Urdang, 194 AD2d 615 [2d Dept 1993]). Mere change of residence, even for an extended length of time, does not effect a change of domicile (Id.).

The record reflects that the decedent lived in Brooklyn, New York for fifty (50) years prior to his death and owned his own home. In the 1990's, the decedent purchased a parcel of real property in Virginia and later built a house on the property. Construction on the home was not quite completed on the date of his death. The decedent had family in Virginia and would often go to Virginia and stay for a "long weekend," according to his son, Lonnie Evans. The decedent had some automobiles registered in Virginia and some registered in New York. The decedent's social security statement reflected his address in Brooklyn. He also listed his Brooklyn address on his medical records when the decedent was admitted to the hospital in Virginia on July 27, 2006 (just prior to his death). Both witnesses testified that the decedent never indicated any intention of changing his domicile from New York to Virginia.

J. H. argues that the administrator, essentially, admitted that the decedent was domiciled [*3]in Virginia with the accounting petition that lists the decedent's domicile as Virginia. The petitioner listed the decedent's domicile as New York in her administration petition. The decedent maintained a bank account in Virginia. The death certificate also contains information that the decedent resided in Virginia provided by Dorothy Washington (the decedent's paramour) who was not called as a witness herein.

Nevertheless, this court is not persuaded by J. H.'s argument that the decedent was domiciled in Virginia. No testimony was provided to show that the decedent indicated his intention of changing his domicile from New York to Virginia. The decedent appeared to have bank accounts, vehicles and houses in both states. The most clear and convincing evidence of the decedent's domicile lies in his medical records for hospitalization shortly before his death, where the decedent provided his New York address to the hospital. The credible evidence indicates that the decedent was domiciled in New York for over 50 years and never changed his domicile to Virginia as argued by J. H.. Therefore, New York law would determine the distribution of the decedent's personal property located in New York.

The remaining question is whether J. H. would be entitled to inherit from or through her birth father, Larry Evans, despite her adoption outside of the family.

The rights of an adoptive child to inheritance and succession from and through her birth parents under the laws of intestacy is terminated upon adoption, except in certain specific circumstances (DRL 117 (1) (b)). An adopted child may still inherit from her birth parents where she is adopted by the spouse of her birth parent (DRL 117 (1) (d)). An adopted child may also inherit from a birth parent where the decedent is the child's birth grandparent or a descendant thereof and the adoptive parent is married to the child's birth parent, is the child's birth grandparent or is descended from the child's birth grandparent (DRL 117 (e)). An adopted out child may also inherit from a birth parent where the right of inheritance accrued before the adoption (see Alberino v Long Island Jewish-Hillside Medical Center, 87 AD2d 217 [2d Dept 1982]).

J. H. has failed to show that the circumstances of her adoption fit into any exception that would make her eligible to inherit from the decedent as a distributee. Her adoptive mother bore no familial relationship to the decedent and J. H. was adopted prior to the accrual of any rights to inherit. J. H. was adopted prior to the death of both the decedent and her father, Larry Evans. Therefore, under New York law J. H. is not entitled to inherit from the decedent.

For the foregoing reasons, this Court finds that the real property located in Virginia must be distributed pursuant to the laws of Virginia. Inasmuch as this is an intermediate accounting which does not request distribution of the Virginia property herein, the administrator may make a request for a determination regarding the distribution of the Virginia real property upon the filing of a final accounting or seek appropriate relief from the courts in Virginia.

This Court further finds that the decedent's real property located in New York must be distributed applying the laws of New York. In addition, as the decedent was domiciled in New York at the time of his death, the decedent's personal property must be distributed pursuant to the laws of New York. Under the laws of New York, J. H.'s adoption outside of the decedent's family extinguished her right to inherit in this estate and thus J. H. is not a distributee entitled to inherit any portion of the decedent's real property located in New York or any portion of the decedent's personal property in this estate.

Settle decree.