1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

Robert B. Beim v. Trevor R. Hulfish (A-33/34-12) (071025)

Argued September 24, 2013 -- Decided January 28, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court considers whether a change in the federal estate tax law after an alleged wrongful 

death can give rise to a viable claim for damages under the Wrongful Death Act (the Act), N.J.S.A. 2A:31-1 to -6.

In 2008, at the age of ninety seven, John Kellogg died following a motor vehicle accident allegedly caused 

by defendants’ negligence. Kellogg’s estate paid federal estate taxes pursuant to the tax laws applicable to the 

estates of decedents who died in 2008. Plaintiffs -- Kellogg’s daughters, the executors of his estate and the trustee 

of a marital trust -- filed a wrongful death action seeking economic damages based on their claim that Kellogg’s

estate would have paid substantially less in federal estate taxes had Kellogg survived until 2009. The trial court 

dismissed plaintiffs’ claims, holding that estate taxes did not constitute recoverable damages under the Act. It 

reasoned that the potential federal tax liability of the Kellogg estate, had Kellogg lived for an additional period after 

the accident, was too speculative to calculate, since tax rates for the estates of decedents who died in 2011 and 

beyond were yet to be determined by Congress. Plaintiffs moved for reconsideration after Congress enacted estate 

tax laws applicable to the estates of decedents who died in 2011 or 2012. The trial court denied reconsideration, 

finding that Congress’s passage of the tax laws did not resolve its concern about speculation and that estate taxes 

are, in any event, not recoverable under the Act.

The Appellate Division reversed. Beim v. Hulfish, 427 N.J. Super. 560 (App. Div. 2012). The panel 

concluded that the estate tax losses alleged by plaintiffs would not compel the factfinder to engage in speculation. It 

held that by the time the trial court ruled on the motion for reconsideration, the estate tax laws for 2011 and 2012 

had been established, and a jury guided by expert testimony would have been in a position to calculate damages. 

The panel accordingly reinstated plaintiffs’ claims for estate tax losses as the measure of damages asserted as an 

element of their wrongful death claim. The Court granted certification. 212 N.J. 462 (2012). 

HELD: The Wrongful Death Act does not authorize claims for damages based on estate taxes paid by a decedent’s 

estate because such claims do not fit within the statutory cause of action defined by N.J.S.A. 2A:31-1 and the 

alleged damages do not constitute “pecuniary” losses as required by N.J.S.A. 2A:31-5.

1. Plaintiffs assert that pursuant to 2001 and 2010 amendments to the Internal Revenue Code, the tax burden on 

Kellogg’s estate would have been significantly less had he died in any of the four years that followed 2008. The 

Court therefore considers whether a distinction in estate tax liability can give rise to a viable claim for damages 

under the Act. When interpreting statutory language, the goal is to divine and effectuate the Legislature’s intent. 

The Court begins with the language of the statute, giving the terms used therein their ordinary and accepted 

meaning, and reads them in the context of the overall scheme so as to give sense to the legislation as a whole. In 

addition, the Court broadly construes the Act in accordance with its salutary purpose to eliminate the inequity of 

denying all right of recovery for the death of a family member. (pp. 10-16)

2. Two of the Act’s six subsections, N.J.S.A. 2A:31-1 and N.J.S.A. 2A:31-5, are central to the Court’s analysis. 

N.J.S.A. 2A:31-1 defines the statutory cause of action as one that “would, if death had not ensued, have entitled the 

person injured to maintain an action for damages resulting from the injury.” This Court has construed N.J.S.A.

2A:31-1 to permit a beneficiary to maintain a claim under the Act only if a claim could have been brought by the 

decedent had he lived. Graf v. Taggert, 43 N.J. 303 (1964); Aronberg v. Tolbert, 207 N.J. 587 (2011). N.J.S.A.

2A:31-5 permits the recovery of “pecuniary injuries resulting from [the decedent’s] death.” Under that provision, if 

the decedent’s survivors prove the defendant’s liability for wrongful death, they may be compensated for the 

economic contributions of which they have been deprived by virtue of the death. The inquiry centers not on the 
2

needs of the heirs, but on what the decedent would have provided to those heirs during an extended lifetime. Such 

losses are compensable because they stand as a substitute for money that would have been provided during the 

lifetime of the decedent, had he or she survived. (pp. 16-21)

3. In Green v. Bittner, 85 N.J. 1 (1980), the Court expanded the category of pecuniary damages to include not only 

the loss of future financial contributions but also the lost value of services such as companionship and care and the 

loss of advice, guidance and counsel. The Court, however, limited damages for companionship and advice “strictly 

to their pecuniary element,” with the value of the services determined in accordance with “what the marketplace 

would pay a stranger with similar qualifications for performing such services,” with no value attached to the 

“emotional pleasure that a parent gets when it is his or her child doing the caretaking rather than a stranger.” Id. at 

12. Thus, in assessing both financial and non-financial losses incurred because of a wrongful death, the focus is on 

the value of what the decedent would have contributed to his or her survivors during a continued lifetime. This

Court has never deemed a loss that fails to meet that definition to be a “pecuniary” injury under N.J.S.A. 2A:31-5.

(pp. 21-23)

4. While pecuniary losses under N.J.S.A. 2A:31-5 cannot be premised on speculation, an exact calculation of the 

plaintiff’s damages may not be feasible in every case. “Where a wrong has been committed, and it is certain that 

damages have resulted, mere uncertainty as to the amount will not preclude recovery — courts will fashion a remedy 

even though the proof on damages is inexact.” Kozlowski v. Kozlowski, 80 N.J. 378 (1979). In determining 

whether the decedent would have contributed to the survivors and, if so, the value of his or her lost contributions, the 

jury should consider the various probabilities which, in the course of the years, might determine the pecuniary 

advantages which would accrue to the next of kin if the death had not occurred. Accordingly, the Act frames the 

determination of damages for pecuniary injuries in a wrongful death case. The survivors’ cause of action is limited 

to claims that could have been asserted by the decedent had he or she survived. N.J.S.A. 2A:31-1. When 

calculating damages for “pecuniary injuries,” the factfinder values as precisely as possible the financial support and 

non-economic services that the decedent would have contributed for the benefit of his or her survivors, had he or she 

lived. N.J.S.A. 2A:31-5. (pp. 23-25)

5. Plaintiffs’ theory of damages is starkly different from the categories of losses held to constitute pecuniary injuries 

under the Act. Federal estate taxes bear no nexus to the financial support or the services that a decedent would have 

provided to his or her heirs had he or she survived. Kellogg’s extended life is significant to plaintiffs’ claims only 

insofar as it would have forestalled his estate’s obligation to pay taxes until Congress had generated a more 

hospitable tax environment. In short, plaintiffs’ damages theory is premised not on the contributions that Kellogg’s 

heirs would have enjoyed during his continued lifetime, but on the tax benefits that they would have achieved as a 

result of his deferred death. Recognition of such damages would contravene the Legislature’s clear intent when it 

prescribed a cause of action for wrongful death and would not advance the Legislature’s objective to leave a 

decedent’s heirs in no worse position economically than if their relative had lived. Accordingly, plaintiffs have not 

set forth a claim that is cognizable under N.J.S.A. 2A:31-1, and their alleged damages do not give rise to a 

“pecuniary” loss within the meaning of N.J.S.A. 2A:31-5. (pp. 25-29)

The judgment of the Appellate Division is REVERSED, and the judgment of the trial court dismissing 

plaintiffs’ claims is REINSTATED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and ALBIN; and JUDGE CUFF 

(temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ (temporarily

assigned) did not participate.
1

SUPREME COURT OF NEW JERSEY

A-33/34 September Term 2012

071025

ROBERT B. BEIM and FRANKLYN 

Z. ARONSON, AS CO-EXECUTORS 

OF THE ESTATE OF JOHN G. 

KELLOGG AND BARBARA KELLOGG, 

FRANKLYN Z. ARONSON AS 

TRUSTEE OF THE ANNE D. 

KELLOGG MARITAL TRUST AND 

JUDITH MEDINA AND PRUDENCE 

KRAUSE,

Plaintiffs-Respondents,

v.

TREVOR R. HULFISH AND TERESA 

CUPPLES,

Defendants-Appellants,

 and

RUSSELL MARKS, JR., AND 

PATRICIA H. MARKS,

Defendants,

 and

CHUBB INSURANCE COMPANY OF 

NEW JERSEY,

Defendant/IntervenorAppellant.

Argued September 24, 2013 – Decided January 28, 2014

On certification to the Superior Court, 

Appellate Division, whose opinion is 

reported at 427 N.J. Super. 560 (2012).

Richard J. Mirra argued the cause for 

appellants Trevor R. Hulfish and Teresa 
2

Cupples (Hoagland, Longo, Moran, Dunst & 

Doukas, attorneys).

John M. Bashwiner argued the cause for 

appellant Chubb Insurance Company of New 

Jersey (Bashwiner and Deer, attorneys; Mr. 

Bashwiner and Joseph A. Deer, on the 

briefs).

Jerrold Kamensky argued the cause for 

respondents (Kamensky Cohen & Riechelson, 

attorneys; Mr. Kamensky and Kristin J. 

Teufel, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

Under the Wrongful Death Act (the Act), N.J.S.A. 2A:31-1 to 

-6, the heirs of a person who has died by virtue of “a wrongful 

act, neglect or default” may assert a claim for their “pecuniary 

injuries.” N.J.S.A. 2A:31-1, -5. The Court considers, for the 

first time, whether the Act authorizes claims for damages in the 

form of estate taxes paid by the decedent’s estate. 

John Kellogg, ninety-seven years of age, died in 2008 

following a motor vehicle accident allegedly caused by the 

negligence of two of the defendants. His death occurred on the 

eve of significant changes in federal tax law. Plaintiffs --

Kellogg’s daughters, the executors of his estate and the trustee 

of a marital trust -- allege that had Kellogg survived until 

2009, his estate would have paid substantially less in taxes 

than it did under the tax laws governing in 2008. They further 

assert that if Kellogg died in any of the three years that 

followed, his estate would have paid no federal tax at all. 
3

Plaintiffs contend that defendants should be held liable for the 

estate tax paid by Kellogg’s estate under the federal tax laws 

that governed in 2008. 

The trial court rejected this claim and granted defendants’ 

motion to dismiss and motion for summary judgment. An Appellate 

Division panel reversed the trial court’s determination and 

reinstated plaintiffs’ claim, holding that the estate taxes 

constitute pecuniary injuries under the Act.

We reverse. We hold that the Act does not authorize

plaintiffs’ estate tax damages claim. The Legislature defined 

the statutory cause of action as one that “would, if death had 

not ensued, have entitled the person injured to maintain an 

action for damages resulting from the injury.” N.J.S.A. 2A:31-

1. Although several categories of economic and non-economic 

losses sustained by a decedent’s heirs may constitute “pecuniary 

injuries resulting from [the decedent’s] death” under N.J.S.A.

2A:31-5, plaintiffs’ proposed estate tax claim would expand the 

Act beyond its intended parameters. Damages premised upon the 

distinctions between the estate tax laws that governed in 

succeeding years are unrelated to any contributions that 

decedent would have made to his heirs had he remained alive. 

Such damages do not advance the Legislature’s objective to leave 

a decedent’s heirs “in no worse position economically than if 

[their] relative had lived.” Aronberg v. Tolbert, 207 N.J. 587, 
4

603 (2011). Accordingly, the trial court properly dismissed

plaintiffs’ claims. 

I.

Kellogg and his first wife, Anne D. Kellogg, were the 

parents of two daughters, plaintiffs Judith Medina and Prudence 

Krause. At the time of Anne D. Kellogg’s death, the Anne D. 

Kellogg Marital Trust (Marital Trust) was formed. Under the 

terms of the trust documents, the Marital Trust would provide 

income to Kellogg during his lifetime. Following his death, the 

Marital Trust would be divided into two sub-trusts, one for each 

daughter. Each sub-trust would provide lifetime income for the 

daughter, and upon the death of the daughter the principal of 

her sub-trust would be paid to her children. Plaintiff Franklyn 

Z. Aronson is trustee of the Marital Trust, and he and plaintiff 

Robert B. Beim are co-executors of Kellogg’s estate.

On January 25, 2008, Kellogg and his second wife, Barbara 

Kellogg, were passengers in a vehicle owned by Patricia Marks 

and driven by Russell Marks. The Marks’ vehicle collided with a 

car owned by defendant Teresa Cupples and driven by defendant 

Trevor Hulfish. Kellogg sustained serious injuries. He was 

hospitalized for a week, and then discharged to a rehabilitation 

center. On February 6, 2008, Kellogg was readmitted to the 

hospital, where he died the following day. 
5

On September 23, 2008, plaintiffs Beim and Aronson, as coexecutors of Kellogg’s estate, filed a federal “Estate (and 

Generation-Skipping Transfer) Tax Return” on the estate’s 

behalf. Under the tax laws applicable to the estates of 

decedents who died in 2008, the Kellogg estate paid 

$1,196,083.57 in federal estate taxes. 

Plaintiffs filed this action in the Law Division in 

November 2009.1 In an amended complaint, plaintiffs asserted 

claims for negligence, survivorship and per quod damages against 

defendants. In one count of the amended complaint, the Kellogg 

estate’s executors asserted a wrongful death claim, seeking 

damages under the Act. In another, the Marital Trust’s trustee 

sought damages based upon “economic losses in the nature of 

Federal and State Estate Taxes and other related tax 

consequences that would not have been suffered but for 

[Kellogg’s] death.”2 In other claims, Kellogg’s daughters 

alleged economic losses resulting from the diminution in the 

value of the Marital Trust, allegedly due to defendants’ 

 

1 Barbara Kellogg was initially named as a plaintiff, but her

claims were withdrawn by stipulation for reasons not relevant to 

the proceedings. Patricia and Russell Marks were named as 

defendants, but the parties stipulated to the dismissal of all 

claims against them, and they are not parties to this appeal.

2 Although the amended complaint alleged a loss based on New 

Jersey estate taxes, the record does not indicate whether the 

Kellogg estate paid state estate taxes, and no party has 

addressed the impact of state estate tax laws. New Jersey

estate tax rates did not change between 2008 and 2012. See

N.J.A.C. 18:26-3A.3.
6

negligence. Chubb Insurance Company of New Jersey (Chubb), 

which had provided underinsured motorist coverage to Kellogg, 

moved to intervene in the action, and the trial court granted 

its motion.

Defendants Hulfish and Cupples, joined by the other 

defendants, moved under Rule 4:6-2 to dismiss the claims 

asserting economic losses allegedly suffered by the Marital 

Trust, or, in the alternative, for summary judgment pursuant to 

Rule 4:46-2. Plaintiffs stipulated that the Marital Trust’s 

estate tax-based claims should be dismissed. They contended, 

however, that estate taxes were an element of damages available 

to Kellogg’s heirs under their wrongful death claim. At trial, 

plaintiffs took the position that had Kellogg not sustained 

injuries in the 2008 accident, he would have lived until 2009 or 

2010, but that he would not have lived until 2011. They argued 

that they should be permitted to present expert evidence that 

the estate would have paid significantly less in taxes had 

Kellogg survived until 2009 than it did following his death in 

2008. 

On December 8, 2010, the trial court granted defendants’ 

motion to dismiss. The court held that estate taxes did not 

constitute recoverable damages under the Act. It reasoned that 

the potential federal tax liability of the Kellogg estate, had 

Kellogg lived for an additional period after the accident, was 
7

too speculative to calculate, since tax rates for the estates of 

decedents who died in 2011 and beyond were yet to be determined 

by Congress.3

Shortly after the trial court’s decision, and in the wake 

of Congress’s extension of the estate tax exemption for estates 

up to $5,000,000 in value through the end of 2012, plaintiffs 

moved for reconsideration. They argued that with the estate tax 

laws governing 2011 and 2012 estates now settled, a jury could

accurately calculate estate tax losses, assuming that Kellogg 

would have died in one of those years. The trial court was 

unpersuaded that its concern about speculation had been resolved 

by Congress’s passage of tax laws governing estates of decedents 

who died in 2011 or 2012. It reasoned that the 2011 and 2012 

tax laws had yet to be determined when Kellogg died, and that 

estate taxes are, in any event, not recoverable under the Act. 

The court denied reconsideration of its order dismissing the 

three counts in which the Marital Trust asserted claims. 

Because no loss other than the payment of estate taxes had been 

alleged, the court granted summary judgment dismissing 

plaintiffs’ remaining claims.

 

3 The trial court did not reach defendants’ standing challenge to 

plaintiffs’ wrongful death claim. Defendants alleged that 

because Kellogg’s daughters were not dependent upon him for 

support, they could not recover under the Act. 
8

Plaintiffs appealed, and the Appellate Division reversed. 

Beim v. Hulfish, 427 N.J. Super. 560, 564 (App. Div. 2012). 

Noting that the estate tax damages question was a novel issue 

under New Jersey law, and distinguishing decisions by courts in 

other jurisdictions rejecting similar claims, the panel 

concluded that the estate tax losses alleged by plaintiffs would 

not compel the factfinder to engage in speculation. Id. at 563, 

568-75. It held that by the time the trial court ruled on the 

motion for reconsideration, the estate tax laws for 2011 and 

2012 had been established, and a jury guided by expert testimony 

would have been in a position to calculate damages. Id. at 573-

74. The panel accordingly reinstated plaintiffs’ claims for 

estate tax losses as the measure of damages asserted as an 

element of their wrongful death claim. Id. at 563-64. It did 

not reach defendants’ challenge to plaintiffs’ standing to 

assert their claims. Id. at 576 n.11.

We granted certification. 212 N.J. 462 (2012). 

II.

Defendants Hulfish and Cupples argue that estate taxes 

cannot be recovered in a wrongful death action. They note that 

the Act permits an action only when the person injured would 

have been entitled to maintain an action for damages resulting 

from the injury “if death had not ensued.” N.J.S.A. 2A:31-1. 

Defendants assert that this language constrains the Court from 
9

awarding estate tax damages, which would not be available to the 

survivor of an accident such as Kellogg’s. 

Defendants contest plaintiffs’ construction of the term 

“pecuniary injuries” in N.J.S.A. 2A:31-5 to include any loss 

sustained by the decedent’s estate. Relying upon authority from 

other jurisdictions, defendants argue that even if estate tax 

damages were contemplated by N.J.S.A. 2A:31-1 and -5, they would 

nonetheless be contrary to New Jersey law because prospective 

tax liabilities are inherently speculative. Finally, defendants 

challenge plaintiffs’ standing to assert their claims on the 

ground that Kellogg’s daughters were not dependent upon him for 

financial support at the time of his death.

Defendant-Intervenor Chubb argues that plaintiffs’ claims 

are barred by N.J.S.A. 2A:31-1’s limiting language, and by case 

law defining a pecuniary injury as the loss of a reasonable 

expectation of a pecuniary advantage that the heirs would have 

achieved had the decedent survived. Chubb disputes the 

Appellate Division panel’s conclusion that estate tax damages 

are not unduly speculative. It invokes the example of a 

decedent who dies prematurely, decades short of his or her life 

expectancy, and contends that the expected tax liability of such 

a decedent’s estate, had he or she lived a normal lifespan, 

would be impossible to ascertain. Chubb challenges plaintiffs’ 

reliance on life expectancy tables to determine when Kellogg 
10

would likely have died had he not sustained injuries in the 2008 

motor vehicle accident.

Plaintiffs counter that the Act is remedial and must be 

construed liberally to achieve its legislative purpose. They 

argue that N.J.S.A. 2A:31-1 is irrelevant to the analysis, 

because it defines only the basis for a wrongful death action 

under the Act and does not address damages. Instead, plaintiffs 

urge the Court to rely entirely upon N.J.S.A. 2A:31-5. In 

plaintiffs’ view, that provision reflects the Legislature’s 

intent to expansively define the damages available under the 

Act, and authorizes claims for any loss that diminishes the 

value of the survivors’ inheritance. To plaintiffs, adverse tax 

consequences are losses directly attributable to the decedent’s 

death, and are therefore recoverable damages under the Act. 

Plaintiffs dispute defendants’ contention that the damages 

at issue are speculative. Citing Kellogg’s advanced age and the 

restrictive provisions of the Marital Trust, they argue that the 

value of the survivors’ inheritance and the impact of federal 

estate tax law were readily determinable in this case with the 

assistance of expert testimony. 

III.

The contention at the heart of this case is that successive 

amendments to federal estate tax law gave rise to a significant 

distinction between the estate tax burden that was imposed on 
11

Kellogg’s estate following his death in 2008 and the estate tax 

burden that would have been imposed on his estate had he died in 

a subsequent year. Several amendments to federal estate tax law 

that took effect shortly after Kellogg’s death are thus germane 

to our analysis.

The Internal Revenue Code (Code) imposes “[a] tax . . . on 

the transfer of the taxable estate of every decedent who is a

citizen or resident of the United States.” 26 U.S.C.A. § 2001

(a).

4 The taxable estate is added to any taxable gifts, as 

defined in 26 U.S.C.A. § 2001(b)(2), to determine the estate’s 

tax base. The tax base is then multiplied by the applicable tax 

rate, which varies in accordance with the value of the estate. 

26 U.S.C.A. § 2001(c). That calculation generates the tentative 

tax, from which any credits authorized by law are deducted to 

determine the amount owed as estate tax. 26 U.S.C.A. §§ 2010-

15. The tax credit that is directly pertinent to this case is 

the Unified Credit Against Estate Tax (Unified Credit), which 

equals the amount of the tentative tax, so long as the tentative 

tax does not exceed the applicable exclusion amount. 26 

U.S.C.A. § 2010(c)(1). Thus, if the tentative tax calculated 

for an estate does not exceed the exclusion amount that applies 

 

4 The taxable estate is calculated by determining the gross 

estate, as prescribed by 26 U.S.C.A. § 2031, and “deducting from 

the value of the gross estate the deductions provided for” in 26 

U.S.C.A. §§ 2051-58. 26 U.S.C.A. § 2051. 
12

to the estate, which is prescribed in the relevant provision of 

the Code, the estate owes no federal taxes. 26 U.S.C.A. §

2010(c)(1). 

The first amendment to the Code that affects this case was 

part of the Economic Growth and Tax Relief Reconciliation Act of 

2001, Pub. L. No. 107-16, 115 Stat. 38 (2001) (2001 Amendments). 

Although the estate tax rate schedule set forth in 26 U.S.C. §

2001(c) was unaltered between 2008 and 2009, the maximum Unified

Credit, which was $780,000 for estates of decedents who died in 

2008, rose to $1,455,800 for estates of decedents who died in 

2009. In addition, pursuant to the 2001 Amendments, the 

exclusion amount rose from $2,000,000 in 2008 to $3,500,000 in 

2009. Economic Growth and Tax Relief Reconciliation Act of 

2001, sec. 521(a). In short, the 2001 Amendments afforded

significant tax relief to the estates of some decedents who died 

in 2009 that was unavailable to Kellogg’s estate following his 

death in 2008. 

For the estates of decedents who died in 2010, the 2001 

Amendments afforded even greater tax relief. Those Amendments 

effected a one-year repeal of the federal estate tax for the 

estates of all 2010 decedents. Economic Growth and Tax Relief 

Reconciliation Act, sec. 501(a). When Kellogg died in February 

2008, the estate tax repeal provision was scheduled to expire on 

December 31, 2010, limiting its impact to the estates of 
13

decedents who died in that year. Economic Growth and Tax Relief 

Reconciliation Act of 2001, sec. 901(a)(2). Had the 2001 

Amendments expired as scheduled on that date, the tax relief 

afforded by those Amendments would have been unavailable to the 

estates of 2011 and 2012 decedents, and those estates would have 

been taxed in accordance with the provisions of the Code that 

had existed before 2001. Economic Growth and Tax Relief 

Reconciliation Act of 2001, sec. 901(b).

The federal tax burden on estates of decedents who died in 

2011, however, substantially changed during the period between 

the trial court’s grant of defendants’ original motion to 

dismiss and the court’s denial of plaintiffs’ motion for 

reconsideration. On December 17, 2010, Congress passed the Tax 

Relief, Unemployment Insurance Reauthorization, and Job Creation 

Act of 2010, Pub. L. No. 111-312, 124 Stat. 3296 (2010 

Amendments). The 2010 Amendments extended the 2001 Amendments 

to estates for an additional two years, applying them to the 

estates of decedents who died between December 31, 2010 and 

December 31, 2012. Tax Relief, Unemployment Insurance 

Reauthorization, and Job Creation Act of 2010, sec. 101(a)(1).

The 2010 Amendments also changed the tax rates applicable to 

estates of decedents who died after December 31, 2009, and 

raised the exclusion amount to $5,000,000 for those estates. 
14

Tax Relief, Unemployment Insurance Reauthorization, and Job 

Creation Act of 2010, sec. 302(a)(1). 

Plaintiffs assert that these developments in federal tax 

law would have substantially benefited Kellogg’s estate had he 

died in any of the four years that followed 2008. According to 

plaintiffs’ calculations, if Kellogg had died in 2009 rather 

than 2008, his estate would have paid only $521,084 in federal 

taxes, less than half of what it paid under the laws in effect 

in 2008.5 Plaintiffs further contend that by virtue of the 

temporary repeal of the federal estate tax for the estates of 

decedents who died in 2010, and the tax relief afforded by the 

2010 amendments for the estates of decedents who died in 2011 

and 2012, Kellogg’s estate would have paid no tax at all had he 

died in any of those years. 

IV.

In light of these changes to federal estate tax law, we 

consider whether the distinction between the liability imposed 

upon estates of decedents who died in 2008, and the liability 

imposed upon the estates of decedents who died thereafter, gives 

rise to a viable claim for damages under the Act. 

 

5 Because defendants’ motion to dismiss was filed before the case 

reached the expert discovery stage, plaintiffs’ calculation of 

the taxes that Kellogg’s estate would have owed had he died in 

2009 is unsupported by expert opinion, and defendants have not 

had the opportunity to contest that calculation.
15

Because the trial court’s dismissal of plaintiffs’ damages 

claim was premised upon statutory interpretation rather than the 

resolution of a factual dispute, we review its determination de 

novo. Zabilowitz v. Kelsey, 200 N.J. 507, 512 (2009); Twp. of 

Holmdel v. N.J. Highway Auth., 190 N.J. 74, 86 (2007). Our 

analysis is governed by the familiar rules of statutory 

construction. “When interpreting statutory language, the goal 

is to divine and effectuate the Legislature’s intent.” State v. 

Shelley, 205 N.J. 320, 323 (2011). To determine the 

Legislature’s intent, we begin with the “language of the 

statute, giving the terms used therein their ordinary and 

accepted meaning.” Ibid. It is not the Court’s function to 

“‘rewrite a plainly-written enactment of the Legislature []or 

presume that the Legislature intended something other than that 

expressed by way of the plain language.’” DiProspero v. Penn, 

183 N.J. 477, 492 (2005) (alteration in original) (quoting 

O’Connell v. State, 171 N.J. 484, 488 (2002)). Significantly 

for this case, which concerns two provisions of the Act, 

“[r]elated parts of an overall scheme can . . . provide relevant

context.” N.J. Dep’t of Children and Families v. A.L., 213 N.J.

1, 20 (2013) (citing Murray v. Plainfield Rescue Squad, 210 N.J.

581, 592 (2012); In re Petition for Referendum on City of 

Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010)). The Court 

must “ascribe to the statutory words their ordinary meaning and 
16

significance . . . and read them in context with related 

provisions so as to give sense to the legislation as a whole.” 

DiProspero, supra, 183 N.J. at 492 (internal citations omitted). 

We broadly construe the Act in accordance with its “salutary 

purpose to eliminate the inequity of denying all right of 

recovery for the death of a family member.” Alfone v. Sarno, 87 

N.J. 99, 109 (1981).

The Act created by statute a remedy that did not exist at 

common law. Johnson v. Dobrosky, 187 N.J. 594, 605 (2006) 

(citing Negron v. Llarena, 156 N.J. 296, 308 (1998)); Alfone, 

supra, 87 N.J. at 107.

6 In 1846, Parliament ended the 

prohibition on wrongful death actions in English law with the 

passage of Lord Campbell’s Act, “An Act for Compensating the 

Families of Persons killed by Accidents,” 9 & 10 Vict., c. 93.

Two years later, the New Jersey Legislature enacted its first 

wrongful death statute, substantially modeled after Lord 

Campbell’s Act. P.L. 1848, p. 151 (March 3, 1848). 

Two of the Act’s six subsections are central to our 

analysis. The first is N.J.S.A. 2A:31-1, which defines the 

statutory cause of action:

 

6 Prior to legislative regulation of wrongful death actions, “the 

theory that death extinguished a personal right of action barred 

any claim for wrongful death.” Alfone, supra, 87 N.J. at 104 

(citing 1 S. Speiser, Recovery for Wrongful Death, §§ 1:1 to 1:9 

at 2-30 (2d ed. 1975)). 
17

When the death of a person is caused by a 

wrongful act, neglect or default, such as 

would, if death had not ensued, have 

entitled the person injured to maintain an 

action for damages resulting from the 

injury, the person who would have been 

liable in damages for the injury if death 

had not ensued shall be liable in an action 

for damages, notwithstanding the death of 

the person injured and although the death 

was caused under circumstances amounting in 

law to a crime.

[N.J.S.A. 2A:31-1.]

In previous cases, this Court has construed the language of 

N.J.S.A. 2A:31-1. In Graf v. Taggert, the Court deemed that

N.J.S.A. 2A:31-1 “intended to preclude recovery where the 

injured person could not have recovered because the defendant 

did not commit a wrongful act or the deceased’s own conduct 

would have barred his right to recover.” 43 N.J. 303, 305-06 

(1964) (citing Knabe v. Hudson Bus Transp. Co., 111 N.J.L. 333 

(E. & A. 1933); Batton v. Pub. Serv. Corp. of N.J., 75 N.J.L.

857 (E. & A. 1908)). “In short,” the Court noted, “if the 

deceased could not have recovered, his beneficiaries may not 

recover.” Id. at 306.

In Aronberg, supra, the Court held that the mother of an 

uninsured driver killed in a motor vehicle collision could not 

assert an action under the Act, given that any personal injury 

claim asserted by her son, had he survived, would have been 
18

barred by N.J.S.A. 39:6A-4.5(a). 207 N.J. at 598-602, 605.

7 

Citing the intent of the Act’s drafters “to bring parity both to 

claims by a victim who lives and to claims by his survivors if 

he dies,” the Court held:

The statutory language does not suggest that 

a claim that a victim cannot bring in life 

can only spring forth in the event of his 

death. Indeed, N.J.S.A. 2A:31-1 gives the 

right of an heir ‘to maintain an action for 

damages’ only if a claim could have been 

brought by the decedent had he lived. In 

this case, Aronberg, as an uninsured driver, 

could not have brought a claim against the 

alleged tortfeasor as a consequence of the 

statutory bar. See N.J.S.A. 39:6A-4.5(a). 

His heirs do not have any greater right than 

Aronberg possessed himself.

[Id. at 603.]

8

The Court’s decisions in Graf and Aronberg reaffirm the 

Legislature’s intent, expressed in N.J.S.A. 2A:31-1, to bar a 

claim for wrongful death that could not have been asserted by a 

 

7 N.J.S.A. 39:6A-4.5(a), a provision of New Jersey’s Automobile 

Insurance Cost Reduction Act, bars an uninsured driver from 

claiming “recovery of economic or noneconomic loss sustained as 

a result of an accident while operating an uninsured 

automobile.” In Aronberg, supra, the decedent had failed to pay 

automobile insurance premiums and his policy was cancelled prior 

to his fatal accident. 207 N.J. at 592.

8 In Aronberg, supra, the Court distinguished the case before it, 

in which the decedent never had the cause of action sought to be 

asserted by his mother, from Miller v. Estate of Sperling, 166 

N.J. 370 (2001). 207 N.J. at 603-05. In Miller, the decedent 

had a viable malpractice claim during her lifetime, but declined 

to pursue it prior to the expiration of the statute of 

limitations that governed that claim; her heirs were not barred 

from asserting that claim after her death. Aronberg, supra, 207 

N.J. at 604-05 (citing Miller, supra, 166 N.J. at 382-83). 
19

surviving plaintiff on his or her own behalf. See Graf, supra, 

43 N.J. at 305-06; Aronberg, supra, 207 N.J. at 605. That 

expression of legislative intent guides our analysis.

The second section of the Act that is relevant to this case 

is N.J.S.A. 2A:31-5, which provides:

In every action brought under the provisions 

of this chapter the jury may give such 

damages as they shall deem fair and just 

with reference to the pecuniary injuries 

resulting from such death, together with the 

hospital, medical and funeral expenses 

incurred for the deceased, to the persons 

entitled to any intestate personal property 

of the decedent in accordance with the 

provisions of N.J.S.A. 2A:31-4.

[N.J.S.A. 2A:31-5.]

Although the limitation to “pecuniary” injuries was not a 

feature of Lord Campbell’s Act, “English case law interpreting 

it quickly imposed the ‘pecuniary’ limitation, allowing purely 

monetary awards but forbidding those for loss of society or 

bereavement.” Johnson, supra, 187 N.J. at 606 (citing Stuart M. 

Speiser and Stuart S. Malawar, An American Tragedy: Damages for 

Mental Anguish of Bereaved Relatives in Wrongful Death Actions, 

51 Tul. L. Rev. 1, 5-8 (1976)). From its inception, New 

Jersey’s Wrongful Death Act incorporated the “pecuniary” 

limitation upon damages, without defining that term in the 

statute itself. P.L. 1848, p. 151 (March 3, 1848).
20

From the Legislature’s use of the term “pecuniary 

injuries,” two principles can be discerned. First, if the 

decedent’s survivors prove the defendant’s liability for 

wrongful death, they may be compensated for the economic 

contributions of which they have been deprived by virtue of the 

death. As the Court, citing federal authority, held in Smith v. 

Whitaker: 

An award of damages in a wrongful death 

action is not a matter of punishment for an 

errant defendant or of providing for 

decedent’s next of kin to a greater extent 

than decedent himself would have been able, 

but is rather a replacement for that which 

decedent would likely have provided and no 

more. The amount of recovery is based upon 

the contributions, reduced to monetary 

terms, which the decedent might reasonably 

have been expected to make to his or her 

survivors. 

[160 N.J. 221, 231-32 (1999) (internal 

quotation marks omitted) (citing Alexander 

v. Whitman, 114 F.3d 1392, 1398 (3d Cir. 

1997)).]

As the Court has noted, “[t]he measure of damages is the 

‘deprivation of a reasonable expectation of a pecuniary 

advantage which would have resulted by a continuance of the life 

of the deceased.’” Curtis v. Finneran, 83 N.J. 563, 569 (1980) 

(quoting Carter v. W. Jersey & Seashore R.R. Co., 76 N.J.L. 602, 

603 (E. & A. 1908)). Thus, the inquiry centers not on the needs 

of the heirs, but on what the decedent would have provided to 

those heirs during an extended lifetime.
21

“The most common class of pecuniary injury under the Act is 

the loss of . . . financial contributions.” Johnson, supra, 187 

N.J. at 607. Calculation of economic losses in a wrongful death 

case “involves two basic determinations: is it probable that 

decedent would have contributed to the survivors and, if so, to 

what extent would contributions have been made?” Ibid. Thus, 

such losses are compensable because they stand as a substitute 

for money that would have been provided during the lifetime of 

the decedent, had he or she survived. See, e.g., Green v. 

Bittner, 85 N.J. 1, 4 (1980) (noting availability of damages for 

“anticipated direct financial contributions by the child after 

he or she becomes a wage earner”); Curtis, supra, 83 N.J. at 

567-68 (permitting damages for future financial loss suffered by 

children because of their father’s death); Tenore v. Nu Car 

Carriers, Inc., 67 N.J. 466, 470, 481 (1975) (allowing expert 

testimony on inflationary trends to show “future wage losses of 

the deceased”). 

Even when wrongful death damages are premised upon nonmonetary losses, they are measured by the monetary value of the 

contributions that the decedent would have made to his survivors 

during his or her life had that life not been cut short. In 

Green, the Court “expanded the category of pecuniary damages to 

include not only the loss of future financial contributions but 

also the lost ‘value’ of services such as companionship and care 
22

. . . and the loss of advice, guidance and counsel.” Johnson, 

supra, 187 N.J. at 609 (citing Green, supra, 85 N.J. at 4). The 

Court limited damages for companionship and advice “strictly to 

their pecuniary element,” with the value of the services 

determined in accordance with “what the marketplace would pay a 

stranger with similar qualifications for performing such 

services,” with no value attached to the “emotional pleasure 

that a parent gets when it is his or her child doing the 

caretaking rather than a stranger.” Green, supra, 85 N.J. at 12

(footnote omitted). Because the question of damages turns on 

the services that the decedent would have provided had he or she 

been afforded the chance to live a longer life, the “mental, 

moral and physical characteristics of the decedent” relating to 

his or her relationship with the survivors “and the concomitant 

‘probability’ of lost advice, guidance, and counsel” are 

relevant factors. Johnson, supra, 187 N.J. at 610—11. 

Thus, in assessing both financial and non-financial losses 

incurred because of a wrongful death, the focus is on the value 

of what the decedent would have contributed to his or her 

survivors during a continued lifetime.9 In its jurisprudence 

 

9 In a 1967 amendment to the Act, the Legislature added language 

authorizing three categories of damages that do not represent 

the decedent’s lost contributions or his or her survivors: 

“hospital, medical and funeral expenses incurred for the 

deceased” in a wrongful death case. Assemb., No. 369, L. 1967, 

c. 307, §1 (amending N.J.S.A. 2A:31-5). The Assembly Statement 
23

interpreting the Act, this Court has never deemed a loss that 

fails to meet that definition to be a “pecuniary” injury under 

N.J.S.A. 2A:31-5. 

A second principle guiding our courts in assessing 

pecuniary losses in a wrongful death action under N.J.S.A.

2A:31-5 is that “[t]he Act ‘permits recovery only of a 

survivor’s calculable economic loss.’” Aronberg, supra, 207 

N.J. at 593 (quoting Smith, supra 160 N.J. at 232). “‘The law 

abhors damages’” that are based on “‘mere speculation.’” 

Caldwell v. Haynes, 136 N.J. 422, 442 (1994) (quoting Lewis v. 

Read, 80 N.J. Super. 148, 174 (App. Div. 1963)). Nevertheless, 

our decisions recognize that a factfinder’s determination of 

damages premised upon a decedent’s lost contributions cannot 

always be conducted with precision. “Where a wrong has been 

committed, and it is certain that damages have resulted, mere 

uncertainty as to the amount will not preclude recovery — courts 

will fashion a remedy even though the proof on damages is 

inexact.” Kozlowski v. Kozlowski, 80 N.J. 378, 388 (1979). 

 

specifically notes that the amendment was intended “to allow as 

a recoverable item of damage the hospital and medical expenses 

of the one wrongfully killed, together with funeral expenses 

heretofore not provided for under law.” Statement Accompanying 

Assemb., No. 369, L. 1967, c. 307. Thus, the Legislature 

evidently considered “hospital, medical and funeral expenses” to 

be distinct from the “pecuniary injuries resulting from such 

death” that had previously been available to wrongful death 

plaintiffs under N.J.S.A. 2A:31-5. 
24

In determining whether the decedent would have contributed 

to the survivors and, if so, the value of his or her lost 

contributions, “‘the jury should . . . consider the various 

probabilities which, in the course of the years, might determine 

the pecuniary advantages which would accrue to the next of kin 

if the tragic event which gave rise to the action had not 

occurred.’” Johnson, supra, 187 N.J. at 607 (alteration in 

original) (quoting McStay v. Przychocki, 10 N.J. Super. 455, 462 

(App. Div. 1950), aff’d 7 N.J. 456 (1951)). Thus, while 

pecuniary losses under N.J.S.A. 2A:31-5 cannot be premised on 

speculation, an exact calculation of the plaintiff’s damages may 

not be feasible in every case.10 As the Court has recognized, in 

calculating a pecuniary loss, “[a] jury’s common knowledge and 

experience is always available to help it assess whether an 

aggregate sum or ‘bottom-line’ figure presented by counsel or an 

expert represents fair and just compensation.” DeHanes, supra,

158 N.J. at 102.

Accordingly, the Act frames the determination of damages 

for pecuniary injuries in a wrongful death case. The survivors’ 

 

10 The trial court’s evidentiary determinations on pecuniary 

losses in wrongful death cases are, of course, governed by the 

applicable Rules of Evidence, including N.J.R.E. 702 and 703, 

which address the admissibility of expert testimony. See

Dehanes v. Rothman, 158 N.J. 90, 100 (1999) (finding that in 

wrongful death case, “there is nothing so intrinsically unique 

about economic losses that the subject should cause [the Court]

to refrain from following the regular rules regarding the 

introduction of expert testimony”).
25

cause of action is limited to claims that could have been 

asserted by the decedent had he or she survived. N.J.S.A.

2A:31-1. When calculating damages for “pecuniary injuries,” the 

factfinder values as precisely as possible the financial support 

and non-economic services that the decedent would have 

contributed for the benefit of his or her survivors, had he or 

she lived. N.J.S.A. 2A:31-5. 

V.

In that setting, we consider whether an increase in the 

applicable federal estate taxes between the date of the alleged 

wrongful death and subsequent years give rise to a compensable 

“pecuniary injur[y]” within the meaning of N.J.S.A. 2A:31-5, 

construed in light of the limiting provisions of N.J.S.A. 2A:31-

1. 

Plaintiffs’ proposed estate tax damages are starkly 

different from the categories of losses held to constitute 

pecuniary injuries under the Act. Economic losses, measured in 

accordance with educational, occupational, demographic and other 

relevant factors, derive from the decedent’s expected 

contributions during his or her continued lifetime, whether that 

lifetime would have been be measured in months, years or 

decades. See, e.g., Johnson, supra, 187 N.J. at 607; Smith, 

supra, 160 N.J. at 231; Curtis, supra, 83 N.J. at 570; Dubil v. 

Labate, 52 N.J. 255, 259 (1968); McStay v. Przychocki, 7 N.J.
26

456, 460 (1951). Non-economic wrongful death damages are 

premised on such services as companionship, care, advice, 

guidance and counsel that the decedent would have provided to 

his or her survivors, had he or she continued to live. See, 

e.g., Johnson, supra, 187 N.J. at 609; Green, supra, 85 N.J. at 

4; Aronberg, supra, 207 N.J. at 593.

Federal estate taxes are inherently different from the 

damages recognized to be “pecuniary injuries” under N.J.S.A.

2A:31-5. They bear no nexus to the financial support or the 

services that a decedent would have provided to his or her heirs

had he or she survived. Plaintiffs’ theory of damages is 

unrelated to any contributions that Kellogg would have made to 

his survivors had he lived for additional weeks, months or 

years. Instead, Kellogg’s extended life is significant to 

plaintiffs’ claims only insofar as it would have forestalled his 

estate’s obligation to pay taxes until Congress had generated a 

more hospitable tax environment. In short, plaintiffs’ damages 

theory is premised not on the contributions that Kellogg’s heirs 

would have enjoyed during his continued lifetime, but on the tax 

benefits that they would have achieved as a result of his 

deferred death. Recognition of such damages would contravene 
27

the Legislature’s clear intent when it prescribed a cause of 

action for wrongful death.11

The estate tax damages sought by plaintiffs sharply differ 

from the income taxes that were held relevant in Tenore, on 

which plaintiffs rely. In Tenore, supra, the Court reversed the 

trial court’s order excluding the defendant’s proffered evidence 

of the income tax that would have been imposed on the decedent 

had he lived. 67 N.J. at 484-85. Rejecting the contentions

that “an individual’s future income tax liability is too 

speculative or conjectural,” and that they are “too complicated 

for jury consideration,” id. at 485, the Court stated:

[W]e hold that under our wrongful death act, 

defendants must have an opportunity to 

cross-examine plaintiffs’ witnesses to 

elicit testimony concerning deceased’s 

 

11 Several courts in other jurisdictions have rejected similar 

claims. See Hiatt v. United States, 910 F.2d 737, 744-45 (11th

Cir. 1990) (applying Florida law to reject plaintiff’s claim 

that had decedent “lived out his expected lifespan, his estate 

would have owed no estate taxes at the time of his death because 

of changes enacted in the tax laws since then”); Farrar v. 

Brooklyn Union Gas Co., 533 N.E.2d 1055, 1055 (N.Y. 1988)

(declining to recognize plaintiff’s claim that had his wife 

lived until 1987 instead of dying in 1982, her estate “would 

have realized the full benefit of the Federal estate tax credit 

and no Federal estate tax would have been due and paid”); 

Elliott v. Willis, 442 N.E.2d 163, 169 (Ill. 1982) (rejecting 

plaintiffs’ claim that “prematurely paid” state and federal 

inheritance taxes assessed following death of their decedent 

constituted compensable pecuniary losses under Illinois law); 

Lindsay v. Allstate Ins. Co., 561 So.2d 427, 427 (Fla. Dist. Ct. 

App. 1990) (rejecting wrongful death damages claim based upon 

“the increased amount paid to the United States government for 

estate taxes as a result of decedent’s premature death,” due to

estate’s failure to achieve maximum unified credit).
28

income tax liability, or to develop the 

matter by extrinsic evidence, to the end 

that the jury be enabled to make an informed 

estimate, based upon the deceased’s 

projected net income after taxes, of the 

survivor’s pecuniary loss. Consequently, 

plaintiff’s recovery must be calculated on 

the basis of the deceased’s net income after 

taxes giving due regard to the evidence 

adduced on the deceased’s income tax 

liability.

[Id. at 494-95 (footnote omitted).] 

Accordingly, to the extent that it is authorized by the

applicable rules of evidence, the admission of income tax 

liability estimates in a wrongful death action is consonant with 

the language and purpose of N.J.S.A. 2A:31-1 and -5. Evidence 

regarding potential income taxes permits the factfinder to more 

accurately evaluate the decedent’s lost financial contributions. 

Estate taxes, in contrast, are irrelevant to decedent’s lost 

contributions during his or her lifetime. Recognition of such 

damages would not further the Legislature’s goal to ensure that 

a decedent’s heirs are “in no worse position economically” than 

if he or she had survived. Aronberg, supra, 207 N.J. at 603. 

Accordingly, we hold that plaintiffs have not set forth a 

claim that is cognizable under N.J.S.A. 2A:31-1, and that their 

alleged damages do not give rise to a “pecuniary” loss within 

the meaning of N.J.S.A. 2A:31-5. In short, plaintiffs’ proposed 

damages are not authorized by N.J.S.A. 2A:31-1 and -5, we do not 

reach the question of whether a court should apply the law in 
29

effect at the time of the decedent’s death or the governing law 

at the time of the decision when it determines whether a claim 

for damages is unduly speculative. We do not decide the issue 

of plaintiffs’ standing, which was raised by defendants but not 

reached by the Appellate Division. 

VI.

The determination of the Appellate Division is reversed, 

and the judgment of the trial court dismissing plaintiffs’ 

claims is reinstated. 

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and ALBIN; and 

JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s 

opinion. JUDGE RODRÍGUEZ (temporarily assigned) did not 

participate.
1

SUPREME COURT OF NEW JERSEY

NO. A-33/34 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

ROBERT B. BEIM and FRANKLYN

Z. ARONSON, AS CO-EXECUTORS

OF THE ESTATE OF JOHN G.

KELLOGG AND BARBARA KELLOGG,

FRANKLYN Z. ARONSON AS 

TRUSTEE OF THE ANNE D.

KELLOGG MARITAL TRUST AND

JUDITH MEDINA AND PRUDENCE

KRAUSE,

Plaintiffs-Respondents,

v.

TREVOR R. HULFISH AND TERESA

CUPPLES,

Defendants-Appellants.

DECIDED January 28, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REINSTATE

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) ----------------------- --------------------

JUDGE CUFF (t/a) X

TOTALS 5