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Volume 5 - Opinions of Counsel SBEA No. 5

Opinions of Counsel index

Aged exemption (residence and occupancy requirement) (legal residence - wife) - Real Property Tax Law, § 467:

For purposes of section 467 of the Real Property Tax Law, a married woman’s “legal residence” is that of her husband until such time as she can show that they are separated and living apart. Thus, in general, a wife cannot claim a separate “legal residence” from her husband in order to be eligible for an aged exemption on her property.

Our opinion has been requested concerning the so-called “aged exemption,” section 467 of the Real Property Tax Law. The facts are that a husband and wife, each sixty-five years of age or over, have individually applied for this exemption on two separate parcels of real property, located in two different towns. They claim that they maintain separate “legal residences” even though they live together, and as evidence of this contention, they point to the fact that each holds sole title to one parcel, and that each votes in the town in which his or her property is located. The question is whether an aged exemption may be granted on each parcel of real property under these circumstances.

Section 467 provides that no exemption may be granted unless the property “is the legal residence of and is occupied in whole or in part by the owner or by all of the owners of the property” (§467(3)(d)). (emphasis added)

Although a person may have two or more places of residence (e.g., one in the city and one in the country) he or she has only one “legal residence” or “domicile” (Matter of Newcomb, 192 N.Y. 238, 84 N.E. 950; see also, 2 Op.Counsel SBEA No. 57). “Residence” simply means living in a particular locality, while “legal residence” or “domicile” is that place in which a person has voluntarily fixed his abode with a present intention of making it his permanent home (Matter of Newcomb, supra). The question here is whether a married woman may have a “legal residence” separate and apart from that of her husband for purposes of the aged exemption.

Following the rule established at common law, a woman at the time of her marriage loses her own domicile and, by operation of law, acquires that of her husband (Hunt v. Hunt, 72 N.Y. 217). In In re Daggett’s Will, 255 N.Y. 243, 174 N.E. 641, the Court of Appeals stated (at p. 246) that:

If Mrs. Daggett had been a single woman, she would have been free to select her own residence or domicile without let or hindrance; to elect between her country home and the city with no better reason than her desire to have her will proved and her estate settled in one county rather than another (Matter of Newcomb’s Estate, supra); but she was a married woman and a married woman cannot to suit her convenience or pleasure merely, create a legal residence for herself apart from that of her husband. (emphasis added)

The rule enunciated in the Daggett case has been cited approvingly in an unbroken line of cases (see, e.g., Usher v. Usher, 41 App.Div.2d 368, 343 N.Y.S.2d 212).

Of course there are exceptions to the rule cited in Daggett. For instance, where the parties are living apart (e.g.. pursuant to a separation agreement) or where the husband has abandoned his wife, the wife may establish a separate domicile (Hunt v. Hunt, supra). Another exception is in the area of voting and office-holding. Pursuant to section 61 of the Domestic Relations Law, “[t]he domicile of a married woman shall be established by the same facts and rules of law as that of any other person for the purpose of voting and office-holding.” However, this latter exception was created by a legislative act, and in the absence of a similar measure in the Real Property Tax Law, it is our opinion that the common law rule set forth in In re Daggett’s Will, supra, is controlling in this situation. Thus, it is our opinion that a married woman cannot claim a separate “legal residence” apart from that of her husband in order to be eligible for an aged exemption on her property (unless, of course, the parties can show they are actually living apart pursuant to a separation agreement which does not seem to be the case here). The fact that a wife may have a separate domicile for voting purposes is not controlling since such exception to the common law rule was created by a specific act of the Legislature and cannot be construed to be applicable to the Real Property Tax Law.

Therefore, for purposes of section 467, a married woman’s “legal residence” is that of her husband until such time as she can show that they are in fact separated and living apart. Thus, in this case, the aged exemption is only applicable to the husband’s property located in the first town since his wife’s home in the other town is not her “legal residence” for purposes of this exemption statute.

April 28, 1975

NOTE:  Superseded by L.1976, c.62 amendment to Domestic Relations Law, sec.61.

Updated: