NJ Medicaid 2026 Community Spouse Maintenance Adjustments

by | Jul 21, 2026 | Legal Bulletin, Medicaid, Medicaid Updates

The New Jersey Department of Human Services, Division of Medical Assistance and Health Services issued Medicaid Communication No. 26-05 on June 11, 2026. The communication announces annual adjustments to the Community Spouse Maintenance Allowance (CSRA), shelter threshold, and related figures under N.J.A.C. 10:71-5.7, effective July 1, 2026. These figures govern how much of an institutionalized spouse's income may be set aside to support the spouse remaining in the community.

Key updated figures effective July 1, 2026:

  • Community spouse base maintenance allowance: Increased from $2,643.75 to $2,705.00 per month.

  • Excess shelter cost threshold: Increased from $793.13 to $811.50 per month. Shelter costs above this amount are added to the base allowance.

  • Standard utility allowance: Remains $878.00 per month (effective October 1, 2025), applicable where the community spouse directly pays utility charges.

  • Community spouse resource allowance: Unchanged. The greater of $32,532 or one-half of the couple's countable resources, not to exceed $162,660.

  • Home equity maximum: Unchanged at $1,130,000.

The Community Spouse Maintenance Allowance is calculated by starting with the $2,705.00 base, adding any shelter costs exceeding $811.50 (including the $878.00 utility allowance if directly paid), and then subtracting the community spouse's own gross income. The result is the amount that may be deducted from the institutionalized spouse's income before applying it to the cost of care.

The full communication, including a fact sheet with computation examples, is available here.

Chiropractic: A Science-Based Legal Perspective

Chiropractic: A Science-Based Legal Perspective

by | Jul 14, 2026 | Consumer Advocacy

Chiropractic is one of the most widely used — and most litigated — forms of alternative medicine in the United States. In New Jersey alone, there are roughly 2,000 licensed chiropractors, and the industry has fought aggressively in courtrooms and legislatures to expand its legal status, secure insurance reimbursement, and position itself on equal footing with medical doctors. In a previous post, I examined the legal status of homeopathy in New Jersey. Chiropractic raises many of the same questions — and some that are uniquely its own.

This post examines what the science actually says about chiropractic, why it remains legal and insurance-covered despite persistent scientific controversy, and how New Jersey courts and regulators have shaped the profession’s reach over the years.

Origins of Chiropractic

Chiropractic was founded in 1895 by Daniel David Palmer, a magnetic healer from Iowa who claimed he received the practice’s core principles from the spirit of a deceased physician. Palmer’s central theory was that nearly all disease originates from “vertebral subluxations” — misalignments of the spinal vertebrae that he believed interfered with the body’s “innate intelligence” flowing through the nervous system. Adjust the spine, the theory went, and you restore the body’s natural healing power.

The problem is that the chiropractic subluxation, as defined by Palmer and his followers, has never been demonstrated to exist. It is distinct from the orthopedic concept of a subluxation — which refers to a partial dislocation of a joint that is visible, measurable, and clinically meaningful. The chiropractic subluxation is a metaphysical concept rooted in vitalism, not anatomy. No peer-reviewed study has ever established that spinal “nerve interference” from a subluxated vertebra causes organic disease.

This foundational problem has never been resolved. The chiropractic profession remains deeply divided between “straight” chiropractors who still adhere to Palmer’s subluxation theory and “reform” or evidence-based chiropractors who limit their practice to neuromusculoskeletal conditions like back pain and neck pain.

What the Evidence Actually Shows

To be fair to the evidence-based faction of the chiropractic profession, there is legitimate support for spinal manipulation as a treatment for specific musculoskeletal complaints. Some studies have found spinal manipulation to be a reasonable option with modest benefit for low back pain in some patients. That is a significant but narrow finding. It does not validate chiropractic as a system of medicine. It does not support the claim that spinal manipulation treats asthma, ear infections, colic, high blood pressure, or any of the other conditions that many chiropractors continue to market for treatment. Systematic reviews have consistently found no reliable evidence that chiropractic care is effective for conditions other than certain types of back and neck pain — and even there, the benefit is modest and comparable to physical therapy.

More concerning is the safety profile. High-velocity neck manipulation — the kind involving a rapid twisting motion of the cervical spine — carries a known risk of vertebral artery dissection, a tear in the artery wall that can cause stroke. The risk is low in absolute terms but not negligible, and the potential modest benefit does not outweigh the significant risk of injury.

Chiropractic Versus the American Medical Association

The same question I asked about homeopathy applies here: if the foundational science is so contested, why is chiropractic not only legal but actively reimbursed by health insurance and Medicare?

The answer is largely historical and political. Chiropractic has been licensed in all 50 states since the 1970s, the result of sustained lobbying over nearly a century. In 1972, Congress amended the Social Security Act to include chiropractic services under Medicare — but only for spinal manipulation for back conditions, a limitation that chiropractors have fought to expand ever since. The American Medical Association declared chiropractic an “unscientific cult” in 1966 and advised its members that associating with chiropractors was unethical. That posture backfired legally when, in 1987, a federal court found in Wilk v. American Medical Association that the AMA had engaged in an unlawful conspiracy to restrain trade — essentially, an illegal boycott of a competitor. The AMA’s aggressive opposition to chiropractic, whatever its scientific merit, had crossed the line into an antitrust violation as far as the court was concerned. The Wilk case is a stark reminder that scientific fact and consensus versus the search for truth in a courtroom are vastly different concepts. In other words, the legal merit of the Wilk case did not depend on whether chiropractic was a scientifically sound medical discipline. Rather the case turned on varying factors that have nothing to do with the scientific method, including US antitrust law, the ability of the lawyers involved, the biases and ability of the few judges involved, the burden of proof in a civil case (often described as “more likely than not”), the law and court rules governing expert testimony (which has created “experts” that only exist in courtrooms), the rules of evidence, and the truthfulness and likeability of the witnesses.    

To summarize, the Wilk decision did not validate chiropractic science. It simply established that the AMA could not use coordinated institutional pressure to drive chiropractors out of business. The practical effect, however, was to legitimize chiropractic further in the eyes of insurers, regulators, and the public.

New Jersey: The Fight for Insurance Reimbursement

New Jersey has been a significant battleground for chiropractic insurance reimbursement. The state’s largest health insurer, Horizon Blue Cross Blue Shield of New Jersey, became the target of a class action lawsuit brought on behalf of thousands of NJ chiropractors.

The case, DeMaria et al. v. Horizon Healthcare Services, Inc., centered on Horizon’s practice of “bundling” chiropractic claims. When a chiropractor provided chiropractic manipulative therapy (CMT) together with evaluation and management services (E/M) or physical therapy (PT) during the same visit, Horizon automatically denied payment for the E/M and PT, folding everything into a single global fee for the CMT — regardless of what services were actually rendered.

In 2009, following a regulatory complaint by the Association of New Jersey Chiropractors (ANJC), the New Jersey Department of Banking and Insurance (DOBI) declared Horizon’s bundling practice a violation of New Jersey’s Unfair Claim Settlement Practices Act, and issued a cease and desist order effective 2010. The class action lawsuit, filed in 2011, sought damages for the period before the DOBI order — from December 2005 through April 2010.

In June 2015, a federal court certified two classes of chiropractors — an ERISA class and a non-ERISA class — covering over 9,500 practitioners whose claims had been systematically denied. In 2016, Horizon agreed to a $33 million settlement, one of the largest ERISA benefit class action settlements involving healthcare providers in the country at that time.

DeMaria was not an isolated case. New Jersey chiropractors also obtained a significant settlement against CIGNA Insurance and American Specialty Health Network (ASHN) over out-of-network reimbursement practices. That matter resulted in an $11.75 million settlement, with a former president of the Association of New Jersey Chiropractors serving as the lead out-of-network plaintiff.

The DeMaria case established an important precedent: an insurer’s systematic denial of provider claims based on an undisclosed internal bundling policy can be challenged as a class action under both ERISA and New Jersey contract law. As with the Wilk case, it is important to keep in mind that DeMaria the CIGNA cases had nothing to do with the scientific merit of chiropractic.

Are Chiropractors Equal to Medical Doctors Under New Jersey Law?

Chiropractors have long sought to be treated as equivalent to physicians under the law — particularly in the context of expert witness testimony, scope of practice, and professional titles. New Jersey law draws a clear but sometimes contested line.

Under N.J.S.A. 45:9-14.5, the practice of chiropractic in New Jersey is defined as a philosophy, science, and healing art focused on the reduction of chiropractic subluxation and the examination, adjustment, and treatment of the articulations and soft tissue of the body. Chiropractors in New Jersey may use the title “doctor” but it must be qualified with the words “doctor of chiropractic,” “chiropractor,” or “chiropractic physician,” or the abbreviation D.C. Critically, chiropractors cannot prescribe medications, perform surgery, or conduct endoscopy. When a patient’s condition falls outside the scope of chiropractic, the chiropractor is required to refer the patient to a licensed physician.

Chiropractors as Expert Witnesses: The Permanency Certification Problem

The question of whether a chiropractor qualifies as a “physician” under New Jersey law is not merely academic. It has significant practical consequences in personal injury litigation — particularly in automobile accident cases governed by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8.

Under AICRA’s verbal threshold provision, a plaintiff who has selected the limitation on lawsuit option cannot sue for pain and suffering unless they can demonstrate, among other things, that they have sustained a permanent injury. To survive a defense motion for summary judgment on that issue, the plaintiff must provide a certification from a “licensed, treating physician” asserting that a permanent injury was sustained. The question of whether a chiropractor qualifies as a “physician” for that purpose produced a sustained split in the New Jersey courts.

Early opinions struggled with the definitional ambiguity. In Pensabene v. Straus, 342 N.J. Super. 196 (Law Div. 2001), the court noted that the definitional portion of the verbal threshold statute is confusing and relied on how other courts had construed “physician” in other statutory contexts — concluding that it would be unjust to deprive an injured plaintiff of their claim simply because they chose to treat with a chiropractor rather than a medical doctor. Olarte v. Crocker, 380 N.J. Super. 203 (Law Div. 2002), reached the same conclusion by reasoning that since chiropractors were not specifically excluded from the statutory definition, the legislature must have intended to include them.

Those conclusions were challenged in subsequent unpublished opinions by a trial judge who took a more textually rigorous approach. In Afram v. Heller, the trial judge reasoned that chiropractors are not permitted to diagnose or treat the systems and conditions that physicians are trained and licensed to address, and that they lack the authority to administer the objective diagnostic tests — such as MRI interpretation — that the AICRA statute requires before a permanency opinion can be rendered. A chiropractor, on that view, cannot produce the foundational clinical work that a permanency certification is supposed to represent.

The Appellate Division resolved the split by siding with the more permissive line of cases, holding in Afram v. Heller that a chiropractor’s permanency certification is sufficient to survive a summary judgment motion under AICRA. That holding, combined with the Supreme Court’s decisions in Serrano and DiProspero — which reduced the plaintiff’s burden on the subjective impact element of the verbal threshold — significantly shifted the balance in favor of plaintiffs in automobile injury litigation.

The Accutane Problem: Why the Science Should Matter in Court

The Afram holding sits in uncomfortable tension with a more fundamental question that the court never confronted: what is the scientific basis for treating a chiropractor’s opinion on permanent injury as reliable expert testimony in the first place?

In the case In re Accutane Litigation, 234 N.J. 340 (2018), the New Jersey Supreme Court adopted Daubert-based reliability principles for expert testimony in civil cases. Under that standard, a trial court acts as a gatekeeper whose responsibility is to assess whether an expert’s opinion is grounded in “sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.” Mere credentials are not enough. The methodology itself must be reliable. Where it is not, the expert opinion is inadmissible.

That standard creates a serious problem for chiropractic expert testimony that courts have largely chosen to ignore. Consider what the scientific record actually establishes. The foundational theory of chiropractic — that vertebral subluxations interfere with the body’s innate intelligence and cause disease — has no support in peer-reviewed science. The best available evidence for the practice’s most defensible application, spinal manipulation for back and neck pain, shows efficacy roughly comparable to physical therapy. That is not a fringe critique of chiropractic; it is the mainstream scientific consensus.

Now apply the Accutane standard to that baseline. If a physical therapist were to take the stand in a personal injury case and offer an opinion that a car accident caused a plaintiff’s permanent spinal injury, that testimony would not survive a gatekeeping motion. Physical therapists are not licensed to diagnose, cannot interpret imaging studies, and are not trained in the clinical evaluation of permanent impairment. No plaintiff’s attorney would seriously propose calling a physical therapist for that purpose, and no court would permit it. The evidentiary logic is straightforward: the witness’s training and methodology do not support the opinion being offered.

If chiropractic’s evidence base is genuinely comparable to physical therapy for the conditions at issue — and the scientific literature says it is — then there is no principled reason to reach a different conclusion for a chiropractor’s permanency opinion. A chiropractor in New Jersey cannot interpret MRI films, cannot prescribe medications, and cannot perform the diagnostic workup that a meaningful permanency evaluation requires. The opinion rests on a clinical foundation that is, at best, no more rigorous than what a physical therapist could offer.

The Afram court did not engage with this problem because it was resolving a question of statutory interpretation, not evidentiary reliability. The question before it was whether the AICRA statute’s use of the word “physician” included chiropractors — and the court answered that question yes, largely on the grounds that excluding chiropractors would be unjust to plaintiffs who chose to treat with one. That is a pragmatic policy judgment, not a scientific one. And it has the effect of bypassing the gatekeeping function that Accutane subsequently demanded.

The result is a structural inconsistency in New Jersey civil litigation. In a toxic tort or product liability case, plaintiffs’ experts must demonstrate that their methodology meets a rigorous reliability standard or face exclusion. In an automobile personal injury case, a chiropractor’s certification of permanent injury — resting on a professional framework whose foundational theory has no scientific validity — is treated as legally sufficient to defeat summary judgment. The same New Jersey court system that demands sound scientific methodology in one context has, in another, institutionalized a workaround that insulates chiropractic opinions from that scrutiny entirely.

That inconsistency has real consequences. Defense attorneys in automobile injury cases would be well-served by exploring whether Accutane’s reliability principles can be used to challenge the admissibility of chiropractic expert testimony at the trial level, even where Afram controls the certification question at summary judgment. The two analyses are not the same: Afram addresses whether a chiropractor’s certification is sufficient under AICRA as a matter of statutory interpretation; Accutane addresses whether the underlying expert opinion is scientifically reliable enough to be placed before a jury.

The Ongoing Push to Expand Scope of Practice

The chiropractic industry in New Jersey has pursued legislative expansion of its scope of practice over the years. A significant legislative effort, led over a five-year period by the ANJC’s legislative chairman, resulted in an expanded Chiropractic Practice Act signed into law by Governor Jon Corzine — the first expansion of the scope of chiropractic practice in New Jersey in 57 years. The same effort produced the first Licensed Chiropractic Assistant legislation in the United States, later signed into law by Governor Chris Christie.

These expansions are significant because they reflect the chiropractic profession’s sustained political strategy: use the legislature and the courts to steadily widen the boundaries of what chiropractors are permitted to do, regardless of whether the underlying science supports those expanded claims.

Final Thoughts

Chiropractic occupies an unusual position in American healthcare: a profession with a pseudoscientific foundation that has nonetheless secured legal standing, insurance coverage, and political influence through a century of determined advocacy. Some of what chiropractors do — spinal manipulation for back pain — has legitimate, if modest, evidence behind it. Much of what the profession claims beyond that does not.

New Jersey’s legal landscape reflects this tension at every level. Courts and regulators have pushed back against insurance abuse while simultaneously expanding the profession’s legal footprint through legislation. And in the personal injury context, the courts have allowed a statutory interpretation decision — Afram — to effectively shield chiropractic expert opinions from the scientific reliability scrutiny that In re Accutane demands of every other category of expert testimony in civil litigation. A profession whose best-supported application is comparable in efficacy to physical therapy has been granted, through a combination of statutory ambiguity and judicial pragmatism, an expert witness status that the science does not justify.

Consumers are best served by approaching chiropractic with the same critical eye they would apply to any healthcare decision: ask what the evidence says, understand the limits of the treatment, and consult a licensed physician for any condition that may require diagnosis or medical management.

When Your VA Award Letter Costs You Medicaid: A New Jersey Case Study

When Your VA Award Letter Costs You Medicaid: A New Jersey Case Study

by | Jul 7, 2026 | Medicaid, Medicaid Planning, Qualified Income Trusts, Trusts

The New Jersey Appellate Division decision, A.D. v. Essex County Department of Family Services, A-2316-23 (decided May 5, 2025), illustrates how a Medicaid application for long-term care can unravel not because the applicant was ineligible, but because of confusion over income rules and missing paperwork. The case involved a resident of an assisted living facility in West Orange whose application was denied twice by the agency and twice appealed — with the Administrative Law Judge ruling in the applicant's favor both times — before DMAHS rejected those decisions and the Appellate Division affirmed the denial. The court's reasoning touches on several issues that arise regularly in NJ Medicaid applications for long-term care: what counts as income, when a Qualified Income Trust is required, and what happens when you cannot produce exactly the documentation the agency demands.

The Income Limit and the QIT Requirement

To qualify for Managed Long Term Services and Supports (MLTSS), the NJ Medicaid program that covers long-term care benefits an applicant must meet both a resource limit and an income limit. The resource limit is $2,000 in countable assets. The income limit is a gross monthly income cap, which currently stands at $2,982 per month (for year 2026). If your income exceeds that cap, Medicaid will not approve your application unless you establish and fund a Qualified Income Trust, also called a Miller Trust or QIT.

A QIT is a legal arrangement in which the applicant's total source of income above the cap is deposited into a dedicated trust account each month before being used to pay for care. The trust does not eliminate the excess income — it channels it in a way the Medicaid rules permit. If the income is over the cap and no QIT exists, the application will be denied. For more on how this works, see my post on Qualified Income Trusts in New Jersey.

In A.D., the agency determined the applicant's income exceeded the limit and required a QIT. The applicant's representative pushed back, arguing that the VA Aid and Attendance benefit included in the applicant's income is not countable for Medicaid purposes and therefore no QIT was needed. The court rejected this argument — not on the merits of whether Aid and Attendance is countable income, but because the applicant never provided the documentation the agency needed to make that determination in the first place.

The VA Award Letter Problem

This is where the case turns practical. VA pension awards can include several distinct components: a base improved pension, an Aid and Attendance supplement, a Housebound allowance, a surviving spouse award, and others. For Medicaid purposes, different components are treated differently — some are countable income, some are not. The agency cannot make that determination from a letter that shows only a total monthly benefit amount.

New Jersey has addressed this directly in Medicaid Communications 12-09 and 15-08. Under those directives, an applicant receiving VA benefits must provide either a letter that specifically identifies the dollar amount allocated to Aid and Attendance, or documentation showing that the VA has determined the applicant's unreimbursed medical expenses reduce their countable income to zero. A letter showing only a lump-sum benefit amount is not sufficient.

In A.D., the applicant provided a VA award letter that showed a surviving spouse benefit with Aid and Attendance listed, but did not break out what portion of the total was attributable to each category. The agency sent a sample letter showing the format it needed and asked for a compliant document. The applicant's representative responded that the VA does not provide a separate breakdown — and directed the agency back to the letter already on file. The agency denied the application. The court agreed: without the itemized breakdown, the application was incomplete, and the denial was not arbitrary or unreasonable.

The Resource Limit and the Timing Problem

The applicant also sought Medicaid eligibility retroactive to November 1, 2022, arguing that her bank balance on that date was below the $2,000 resource limit because a check written to the nursing facility had cleared and reduced the balance to $335.80. The agency looked at the bank statement for the following month, which showed a balance of $2,696.71. The applicant argued a second check, written in early November, had also cleared by month's end and would have brought the balance below $2,000. The bank statement did not confirm that the check cleared when claimed, and the court found no basis to disturb the agency's finding that the resource limit was not met.

The clinical eligibility piece followed the same pattern. The applicant argued that a Pre-Admission Screening request made in December 2021 should establish her clinical eligibility date, but the regulation is explicit: clinical eligibility begins on the date the screening is completed, not the date it is requested. The record showed the screening was not requested until December 29, 2022 and completed January 9, 2023. The court found no evidence to support an earlier request date.

What This Means If You Are Applying

The A.D. case is a reminder that a Medicaid application for long-term care is a documentation-intensive process with little margin for error. Several things are worth taking from it.

First, if you or a family member receives a VA pension of any kind, obtain the most detailed award letter the VA will provide before filing a Medicaid application. If the letter does not itemize the dollar amount for each benefit category — Aid and Attendance, surviving spouse benefit, Housebound allowance, and any others — request an updated letter from the VA or contact a veterans service organization for help. The agency handling the Medicaid application needs that breakdown. A general award letter will not be enough.

Second, if your gross monthly income exceeds the Medicaid income cap, a QIT must be established and funded before the application is filed. It cannot be set up after a denial and applied retroactively. The income cap and the QIT requirement are not technicalities — they are threshold eligibility conditions.

Third, if you receive a request for information from the County Social Service Agency, respond fully and on time. The agency must give you an opportunity to provide missing documents, but if you cannot supply what is requested ask for more time or provide documentary proof establishing your good faith effort to respond. For more on how to challenge a denial you believe was issued in error, see my post on contesting an arbitrary Medicaid denial in New Jersey.

Finally, be precise about timing. Resource eligibility is determined month by month based on countable assets at the beginning of each month. Pending checks, deposits, and transfers need to be documented with bank statements that actually show what cleared and when. And remember that both financial eligibility and clinical eligibility must be satisfied at the same time — meeting one without the other is not enough.

Medicaid planning for long-term care is not something to approach without preparation. The rules governing income, resources, and documentation are detailed, and mistakes are difficult to correct after the fact. If you are in the five-year lookback period and considering a Medicaid application, see my overview of the five-year lookback rule in New Jersey for background on how prior transfers can affect eligibility.

Separated in New Jersey? Your Spouse May Still Inherit Everything

Separated in New Jersey? Your Spouse May Still Inherit Everything

by | Jun 30, 2026 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate

A New Jersey appellate decision decided June 29, 2026 — In the Matter of the Estate of Agnieshka Burke — offers a stark illustration of what can happen when someone dies while a divorce is still pending. The case involves a $500,000 life insurance policy, a Will that named the estranged husband as executor and sole beneficiary, and a fight between that husband and the decedent's sister over who gets what. The court's ruling touches on three issues that matter to anyone who is separated, going through a divorce, or simply has not updated their estate plan in years: whether your Will still works the way you intended, who controls your estate when you die, and what happens to assets like life insurance that pass outside your Will entirely.

Dying With a Divorce Pending

Under New Jersey law, a divorce action ordinarily ends when a final judgment of divorce is entered. If one spouse dies before that happens, the divorce proceedings have traditionally abated — meaning they simply stop. The surviving spouse inherits under the Will or under the intestacy laws if there is no Will, and the court's power to divide marital property (called equitable distribution) disappears.

The Legislature changed this rule in January 2024 by adding subsection (h)(2) to the equitable distribution statute, N.J.S.A. 2A:34-23. The new provision states that if a divorce complaint has been filed and either party dies before a final judgment is entered, the court's authority to divide marital property does not abate. In Burke, the Appellate Division confirmed that this right belongs not just to a surviving spouse, but also to the estate of the spouse who died. In plain terms, if you file for divorce and then die before it is finished, your estate (acting through a personal representative) may still be able to pursue a share of the marital assets.

This is a significant development for anyone with a pending divorce. It means that death during divorce proceedings does not necessarily resolve the property dispute. It may simply transfer the fight to a different courtroom.

Your Executor May Have a Conflict of Interest

In Burke, Agnieshka had named her husband Jared as executor of her Will. After she died with the divorce still pending, Jared was appointed executor and also stood as the primary beneficiary under both her Will and life insurance policy. The court found this created an irreconcilable conflict of interest. As the Appellate Division put it, Jared's responsibilities to represent the estate's interests and his own personal interests were "directly adverse."

The court did not remove Jared as executor entirely, but it disqualified him from acting as executor in connection with the equitable distribution dispute — the exact proceeding where the estate's most valuable rights were at stake. It then ordered the Probate Part to appoint a substitute executor for that limited purpose, and noted that Agnieshka's Will had already named her sister as successor executor.

The lesson here is direct. If you are separated or in the middle of a divorce, your spouse is most likely still named in your Will as executor, beneficiary, or both. Unless your Will is updated or the divorce is finalized, that person retains legal authority over your estate when you die. New Jersey law does automatically revoke certain transfers to a former spouse after a divorce is complete under N.J.S.A. 3B:3-14, but that protection does not kick in until the divorce is actually finalized. Separation alone changes nothing.

Non-Probate Assets Are a Separate Problem

Most people assume their Will controls everything they own. It does not. Assets that pass by beneficiary designation — life insurance, retirement accounts, payable-on-death bank accounts — transfer directly to the named beneficiary regardless of what the Will says. These are called non-probate assets, and they pass outside of probate entirely.

In Burke, Agnieshka's $500,000 life insurance policy named Jared as the sole beneficiary. The couple was separated and a divorce was pending, but she had not changed the designation. The Appellate Division sent the question of who is entitled to those proceeds to the Family court for resolution, but it was careful to note that Jared remains the named beneficiary and that no settlement agreement or final divorce judgment existed that would automatically revoke that designation under N.J.S.A. 3B:3-14.

This is where many people are caught off guard. You can update your Will, but if you forget to change the beneficiary on your life insurance policy or your 401(k), those assets still pass directly to your estranged spouse. The only way to ensure your beneficiary designations reflect your current intentions is to change them directly with the insurance company, bank, or plan administrator — a Will cannot override them.

What You Should Do Now

If you are separated or going through a divorce, your estate plan needs immediate attention on several fronts. First, after consulting your divorce attorney, review and update your Will to name a new executor and new beneficiaries. Second, also after consulting your divorce attorney, change beneficiary designations on every account that carries one — life insurance, IRAs, 401(k)s, annuities, payable-on-death accounts. Third, review any powers of attorney and health care proxies that name your spouse as your agent. In New Jersey, the divorce statute does not automatically revoke a health care proxy naming a spouse, so your estranged husband or wife may still have the legal authority to make medical decisions for you if you become incapacitated. For more on how that works, see who makes medical decisions in New Jersey.

There are also Medicaid planning considerations that arise when a couple separates but does not yet divorce — particularly for couples where one spouse may need long-term care. Medicaid's spousal protection rules treat legally married couples as a unit for purposes of resource assessment, which can affect eligibility and planning options. For more on that issue, see Medicaid and divorce in New Jersey.

The Burke case is a reminder that separation is not a legal status that protects you or your estate. Until a divorce is final, your spouse remains your legal spouse for virtually every purpose that matters in estate planning. If your circumstances have changed, your documents need to change with them.

New Jersey Supreme Court Rejects Shaken Baby Syndrome Testimony as Unreliable Science

New Jersey Supreme Court Rejects Shaken Baby Syndrome Testimony as Unreliable Science

by | Jun 23, 2026 | Legal Bulletin, NJ Supreme Court

On November 20, 2025, the New Jersey Supreme Court issued one of the most significant evidentiary rulings in the state’s criminal law in years. In State v. Nieves, the Court held that expert testimony diagnosing Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) — specifically, the theory that shaking an infant without any impact to the head can cause a recognized cluster of injuries — is not reliable enough to be presented to a jury. The decision affirmed rulings by two trial courts and the Appellate Division, and it represents a rare and important judicial reckoning with what has long been treated as settled medical fact in the courtroom.

This post explains what the Court decided, why it matters, and what it says about the broader problem of unreliable science being presented as certainty in the courtroom.

The Two Cases

The decision consolidated two prosecutions involving similar facts. In the first, Darryl Nieves was the primary caregiver of an infant, D.J., who had a complicated medical history including premature birth and cardiac surgery. At eleven months old, D.J. experienced three episodes of seizure-like symptoms over two weeks, each occurring while Nieves was caring for him. D.J. was found to have bilateral retinal hemorrhages and bilateral subdural bleeding. A child abuse pediatrician reviewed his history, found no other explanation, and diagnosed SBS/AHT “within a reasonable degree of medical certainty.” Nieves was indicted on aggravated assault and child endangerment charges. A second defendant, Michael Cifelli, faced a similar diagnosis from the same physician under similar circumstances.

Both men challenged the admissibility of the State’s SBS/AHT testimony before trial, arguing the underlying science was not reliable enough to meet New Jersey’s evidentiary standard.

How New Jersey Tests Reliability

Under New Jersey Rule of Evidence 702, expert testimony is admissible only if the field of inquiry is developed enough that an expert’s opinion can be considered reliable. New Jersey applied the “Frye standard” for these cases, which asks whether the underlying science has gained general acceptance in the relevant scientific field — and courts can identify more than one relevant field, with general acceptance required in each. This matters enormously here: the SBS/AHT diagnosis is delivered by pediatricians, but its scientific foundation traces back to biomechanics, the engineering discipline that studies how physical forces affect the human body — the same field behind crash-test research used in vehicle safety design.

Tracing SBS/AHT Back to Its Scientific Roots

The Court’s opinion traces the diagnosis back to its scientific roots, and that history matters. In 1968, a neurosurgeon studying whiplash injuries from car accidents concluded that brain injury could result from rotational forces on the head and neck alone, without direct impact — research that had nothing to do with infants or shaking. Other researchers later relied on that study to hypothesize that a shaken infant could suffer similar injuries, and through a series of papers in the early 1970s, the theory of infant “whiplash-shaking” began to spread through the medical community.

In 1987, the first biomechanical study actually designed to test the shaking hypothesis using infant models was published — and it concluded that shaking alone does not produce the injuries associated with SBS/AHT. In 2002, the original whiplash researcher published a paper criticizing the way his own work had been used to support the theory. A decade later, the neurosurgeon who first proposed the shaking hypothesis questioned it as well. In other words, the diagnosis used for decades to support convictions was built on biomechanical assumptions that the biomechanical community itself never fully validated, and that some of the theory’s own originators eventually disavowed.

Why the State Lost

At the Frye hearing in Nieves, the State called a single expert, a child abuse pediatrician, who testified that shaking alone could produce the recognized triad of symptoms. The defense countered with biomechanical engineers who testified that no scientific testing has ever established that a human being can generate the physical force necessary to cause those injuries through shaking alone. The trial court found this decisive, noting that the few studies attempting to establish a force threshold relied on monkeys, wooden dolls, or other mechanical stand-ins for an infant’s body — models that cannot reliably substitute for human anatomy. No study has ever measured what shaking a real infant actually produces in force, because no such study could ethically be performed.

The Supreme Court agreed, and its reasoning turned on a critical concession by the State itself. In supplemental briefing, the State acknowledged that disagreement exists among biomechanical engineers generally regarding whether shaking alone can cause abusive head trauma. The Court treated that admission as significant evidence, on its own, that the biomechanical community has not reached general acceptance on the question — and emphasized that biomechanics is not peripheral, but the very field from which the SBS/AHT theory originated. The Court acknowledged general acceptance within much of the medical and pediatric community, but held that was not enough. The State did not meet its burden because biomechanics is also a relevant scientific community and general acceptance was lacking there.

What the Decision Does Not Do

The ruling is narrower than it may sound. The Court did not hold that abuse involving head trauma is unprovable, and did not bar physical evidence of abuse from reaching a jury. Where there is independent evidence — bruising, fractures, an admission, or any other physical indicator of impact or injury — the State remains free to present it. What the Court excluded is expert testimony asserting, as a matter of medical certainty, that the symptoms alone prove the child was shaken without any impact, when the underlying biomechanical science does not support that conclusion. The Court also left the door open for the future: New Jersey adopted a Daubert-based reliability standard for some expert testimony in 2023, and the Court noted that if new, reliable scientific evidence develops, the State could attempt to establish SBS/AHT’s reliability under that standard in a later case. This is not a permanent ban — it is a determination that, on this record, the science was not there yet.

The decision was also not unanimous. One justice dissented, arguing that SBS/AHT is endorsed by every major medical association involved in its diagnosis and treatment, that every other state to consider the question has allowed the testimony, and that the majority let a handful of biomechanical engineers override the broader medical consensus. The majority’s response was that the State’s own concession of disagreement among biomechanical engineers, combined with that field’s direct relevance to the theory’s scientific foundation, was enough on its own to defeat a claim of general acceptance — regardless of how many medical organizations had endorsed the diagnosis.

Why This Case Matters Beyond These Two Defendants

SBS/AHT prosecutions are not rare. For decades, a diagnosis delivered with confidence by a pediatric specialist has been sufficient, in courtrooms across the country, to support a conviction — even when the medical diagnosis itself was the only evidence of abuse. New Jersey’s highest court has now said, in a published and precedential decision, that this practice rests on a scientific foundation that has not been adequately tested, and that the field most directly responsible for that foundation has not reached consensus on its core premise.

This is what happens when a court takes seriously its role as a gatekeeper against unreliable expert evidence. Science adapted specifically to answer a legal question — rather than developed independently and later applied to one — deserves exactly this kind of scrutiny. The history traced in this opinion shows a theory that migrated from automobile whiplash research into infant medicine, gained momentum through repetition and institutional endorsement, and was never tested against the basic question of whether shaking an infant can actually generate the force the theory requires. That is not how reliable science works, and it is not how evidence that can take away someone’s liberty should reach a jury.

For families and defendants facing an SBS/AHT allegation in New Jersey, this decision is significant. It does not mean such a charge can never be proven — independent physical evidence of abuse remains fully admissible. But the diagnosis alone, offered as medical certainty that shaking without impact occurred, can no longer reach a New Jersey jury without first surviving the scrutiny this opinion demands.