                NOT FOR PUBLICATION WITHOUT THE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
