Domicile
Rule / Approach
Domicile is the place a person treats as their permanent home — the state they intend to be their legal home even when temporarily absent. It serves as the primary connecting factor in choice of law for personal status matters (succession of movables, divorce, marriage validity, family law). Every person has one, and only one, domicile at any given time (First Restatement § 11).
Elements / Steps
Domicile is determined by two factors:
- Physical presence / residence: The person must actually reside in the state.
- Intent to remain (animus manendi): The person must intend to make the state their permanent or indefinite home — an intent to remain without a present plan to leave.
Change of domicile requires:
- Establishing residence in a new state, AND
- Intent to make the new state one’s home (the old domicile is abandoned).
- A person retains their old domicile until both elements are satisfied in a new state.
Special rules (First Restatement):
- A child takes the father’s domicile at birth (§ 14); illegitimate child takes the mother’s.
- A wife traditionally took the husband’s domicile (§ 27), though a separated wife could acquire a separate domicile if not deserting (§ 28).
Exceptions / Critiques
- Fallacy of the transplanted category (W.W. Cook): “Domicile” does not mean the same thing in every legal context. The concept may be defined differently for divorce jurisdiction, income tax, will validity, and intestate succession. Courts should ask why they are using the domicile concept before assuming a single definition applies across contexts.
- Habitual residence: Increasingly used in international and EU law (Rome I, Rome II) as a more practical proxy than domicile, focusing on the center of a person’s everyday life rather than intent.
- Corporations: Domicile equated with state of incorporation and principal place of business — distinct from the personal domicile concept.
- Context-specific definition: The same individual may have different “domiciles” for different legal purposes if courts adopt a functional approach.
Policy
Domicile anchors choice-of-law rules to the place most closely associated with a person’s legal identity. It gives the state with the strongest interest in an individual (their home state) authority to govern personal status, succession, and family matters. It also provides a stable, predictable connecting factor — unlike the place of injury (which can be fortuitous) — but requires courts to engage in fact-intensive inquiry about intent.
Key Cases
- White v. Tennant — succession of personal estate governed by law of decedent’s domicile at death; court held decedent had changed domicile from West Virginia to Pennsylvania by selling his farm and moving his belongings before dying.
- Milliken v. Pratt — domicile of parties was central to identifying false vs. true conflicts in married-women’s contracts.
- Babcock v. Jackson — parties’ common New York domicile was the key fact establishing a false conflict with Ontario’s guest statute.