An older gentleman lived in Johnson County, Oklahoma since 2018. Before 2018 he had lived in Oklahoma County. Four years later in 2022 he returned to Oklahoma County for medical and assisted living care. He died in June of 2022.
A dispute arose between which county should the probate proceed, Johnson County or Oklahoma County.
The Supreme Court of Oklahoma held in Matter of Estate of Cunningham, 2025 OK 72 as follows:
I. The District Court’s Ruling that Decedent was a Resident of Johnston County at the Time of His Death is Not Clearly Contrary to the Weight of the Evidence.
¶11 Venue for probate actions in Oklahoma is governed by 58 O.S.2011, § 5. 1 The statute looks first to the Decedent’s residency, i.e., whether the decedent died as a resident or a non-resident of this state. See 58 O.S.2011, § 5; In re Fulks, 2020 OK 94, ¶¶ 13-14, 477 P.3d at 1149. If the decedent died as a resident of this state, venue is proper in the county of which the decedent was a resident at the time of his or her death, regardless of where the decedent died. See 58 O.S.2011, § 5(1). In this case, both parties agree that Decedent was a resident of this state — the dispute is over which county in Oklahoma was his “residence” at the time of his death.
¶12 Under Oklahoma law, “[r]esidence is defined as the place where one’s habitation is fixed without the present purpose of removing therefrom. It is synonymous with ‘Domicile.'” Jones v. Burkett, 1959 OK 221, ¶ 13, 346 P.2d 338, 341 (citing Southwestern Greyhound Lines v. Craig, 1938 OK 304, ¶ 15, 80 P.2d 221, 224). An individual can only have one residence at a time, and an individual must have a residence somewhere. See Jones, 1959 OK 221, ¶ 13, 346 P.2d at 341. As a general principle, Oklahoma domicile, once established, is presumed to continue until a new one is established elsewhere. Id. ¶ 13, at 341; Suglove v. Oklahoma Tax Commission, 1979 OK 168, ¶ 5, 605 P.2d 1315, 1317-18. Therefore, in order to change one’s domicile there must be actual abandonment of the first domicile, coupled with the intention not to return to it, and actual residence in another place with an intention of making it a permanent home. See Jones, 1959 OK 221, ¶ 14, 346 P.2d at 341; Suglove, 1979 OK 168, ¶ 5, 605 P.2d at 1317. “Indicia of a changed domicile are to be found in the habits of the person, his business and domestic relations, declarations, exercise of political rights, community activities and other pertinent objective facts ordinarily manifesting the existence of requisite intent.” Suglove, 1979 OK 168, ¶ 5, 605 P.2d at 1317.
¶13 Appellants argue that Decedent was a resident of Oklahoma County at the time of his death because the record demonstrates that: (1) during the four years Decedent lived in Johnston County, he did not make any improvements to the home he owned; (2) Decedent expressed to Moore on multiple occasions that he had made a mistake in moving from Oklahoma City and he wanted to move back; (3) upon returning to Oklahoma City for medical care, Decedent made efforts to locate and purchase property in Oklahoma City, but at the time of his death, he had not yet purchased any property; (4) Decedent always regretted selling his house in Oklahoma City; and (5) Decedent expressed his intent to live permanently in Oklahoma City during his five-month medical stay. Appellants allege this evidence establishes Decedent’s residence in Oklahoma County at the time of his death. They allege it first shows Decedent’s actual abandonment of his residence in Johnston County, followed by his actual residence in Oklahoma County at the assisted living center, coupled with his intent to remain in Oklahoma County.
¶14 Contrary to the assertions of Moore, McClendon relies on a number of Oklahoma cases to support her position that Johnston County was the Decedent’s residence at the time of death, including James v. Sanders, 1923 OK 690, 218 P. 877, and Anderson v. Jackson, 1935 OK 170, 41 P.2d 815. In James v. Sanders, the issue was whether Love County or Carter County had jurisdiction over the decedent’s probate proceeding. In James, the decedent was a very young child when her parents died so she went to live at St. Agnes Academy — a convent, in Carter County. See James, 1923 OK 690, ¶ 1, 218 P. at 877. The decedent fell ill with influenza, which ultimately turned into tuberculosis. Id. As a result, in the spring of 1919, she was sent to the Tubercular Sanitarium for Indians in Talihina, Oklahoma. Id. A year later, she left the sanitarium and visited a classmate, Dora Sanders, and her husband, Henry Sanders, at their home in Love County. While in Love County, she executed her will, and she remained there for approximately twelve days until one of her teachers and a classmate from St. Agnes came to the Sanders’ home to talk to her about her health and invited her to go back to St. Agnes, “which she readily consented to do, and signified a desire to return to the academy, which she had always regarded as her home after the death of her mother.” Id. The decedent thereafter died in Carter County at St. Agnes in June 1920. Id. ¶ 2, at 878.
¶15 The issue on appeal in James was whether the county court in Love County had jurisdiction over the probate proceedings. Id. In reaching its decision and ultimately reversing the district court, the Court:
carefully considered the evidence in the record, and while it may be conceded that there is evidence tending to show that Cora James left the sanitarium at Talihina with the intention of making her home with Dora Sanders in Love county, yet we are unable to wholly ignore the undisputed testimony that shows that she was anxious, after having resided for 12 days on the farm of the petitioner in Love county, to return to the academy, where she had been reared, educated, and given a home from early childhood, until she reached majority, and until she was sent to the sanitarium as a patient.
James, 1923 OK 690, ¶ 2, 218 P. at 878 (emphasis added). In considering the evidence, the Courtconcluded that it was the decedent’s intent, in returning to St. Agnes in Carter County, to continue to reside in said County for the remainder of her life as her permanent residence. Id. As such, the Court determined venue was proper in Carter County.
¶16 Similarly, in Anderson, the question was whether there was sufficient evidence to show that the decedent, after having established his residence in McCurtain County within the meaning of the statute, 2 was a resident of Choctaw County at the time of his death. See Anderson, 1935 OK 170, ¶ 6, 41 P.2d at 816. The decedent owned real and personal property in McCurtain County, died in McCurtain County, and was buried in the cemetery in McCurtain County along with his four children. Id. ¶ 1, at 815. At the time of his death, the decedent in Anderson owned no real or personal property in Choctaw County, with the exception of a few small personal items. Id. ¶ 2, at 815.
¶17 The decedent in Anderson had gotten a divorce approximately one year earlier in McCurtain County. Id. ¶ 3, at 815. After the decedent’s divorce, he went to Hugo, Oklahoma, in Choctaw County to live with his mother without taking any of his household goods with him. Id. ¶ 4, at 815. Instead, he used his relatives’ furniture or rented furnished apartments. Id. There was evidence presented that decedent still considered Bethel, Oklahoma, in McCurtain County to be his home, and he made frequents visits to McCurtain County. Id. We held that there was insufficient evidence to show that the decedent’s legal residency in McCurtain County had been abandoned. Id. ¶¶ 9-11, at 816.
¶18 Like Jackson and Anderson, the facts in this case do not support the abandonment argument. Decedent did not abandon his residence in Johnston County when he came to Oklahoma County. All of the late-life moves made by the Decedent were medically driven decisions, not housing choices. Ultimately, Decedent was transferred to an assisted living facility in Oklahoma County where he continued to receive medical treatment for approximately two months. The entirety of Decedent’s medical treatment in Oklahoma County lasted approximately five months.
¶19 Like the decedent in James, Decedent was a patient when he was transported to Oklahoma County via ambulance. He was a patient at the hospital, a patient at the skilled nursing facility, a patient at the assisted living center, and a patient once again at the hospital in Oklahoma County where he ultimately passed away. Although Decedent was present in Oklahoma County for about five months receiving medical care, which is clearly longer than the twelve days decedent was present in Love County in James, the record establishes that Decedent was present in Oklahoma City for the sole purpose of receiving medical care and thus, he did not legally abandon his residence in Johnston County with the intent to remain in Oklahoma County. As such, we hold these facts, standing alone, are not sufficient to warrant abandonment of Decedent’s residency in Johnston County under Oklahoma law.
¶20 Moore asserts that Decedent expressed his intent to live permanently in Oklahoma City during his five-month medical stay. Anderson is also instructive in this regard. In Anderson, the Court made note of the “considerable conflict in the evidence, which [was] voluminous, as to whether he [decedent] and his wife had become reconciled and had lived together as husband and wife after the divorce.” Anderson, 1935 OK 170, ¶ 4, 41 P.2d at 815 (emphasis added). Similarly, in the present case we find conflicting evidence in the record as to Decedent’s intent. Contrary to the allegations of Moore, McClendon argues Decedent wanted to return to his farm in Johnston County.
¶21 Ultimately, residency is a question of fact to be determined by the district court, and such determination is conclusive upon appeal unless clearly against the weight of the evidence. See Burke v. Burke, 1926 OK 673, ¶ 10, 249 P. 1110, 1111. The district court found that there was conflicting evidence concerning Decedent’s intent to return to his residence in Johnston County. However, the conflicting evidence in this case was not sufficient to prove abandonment of Decedent’s residence. Nor was speculative evidence as to where the Decedent wanted to live in the future (should Decedent have been well enough to have been discharged from the hospital/medical facility and been well enough to establish actual residency) sufficient to prove abandonment of his original residence.
¶22 We are further guided by our prior precedent in In re Davis’ Estate, 1935 OK 242, 43 P.2d 115, and Breedlove v. Tulsa County Court, 1935 OK 1101, 58 P.2d 305. In the case of In re Davis’ Estate, we found that decedent was still a resident of Craig County despite the fact that at his last illness, he was away from his home. See In re Davis’ Estate, 1935 OK 242, ¶ 8, 43 P.2d at 116-117. We concluded the decedent had established his residence in Craig County and never abandoned the same. Id. Similarly, in Breedlove v. Tulsa County Court, we concluded the decedent never abandoned her established residence and was still a resident of Tulsa County where her homestead remained, despite the fact that she had lived in Sequoyah County with her mother for the preceding years prior in order to receive the care she required because she was an invalid. See Breedlove,1935 OK 1101, ¶ 11, 58 P.2d at 307.
¶23 Appellants argue that these cases are distinguishable because there was no evidence presented to the court in either of those cases that the decedent ever intended to abandon his or her domicile, while the record in this case contains Moore’s statements that the Decedent intended to remain in Oklahoma County.
¶24 We are not persuaded that the cases are distinguishable, as a review of the record herein shows that the Decedent was in Oklahoma County for the purpose of receiving medical care, and all other evidence was in conflict. The conclusion by the district court that Johnston County was the County of Decedent’s residence at the time of his death, although disputed by Moore’s testimony, is not contrary to the clear weight of the evidence as reflected by the whole record, and that part of the order is affirmed.