What is the difference between domicile and residence?
Answer
From 1 Warren's Heaton on Surrogate's Court Practice § 2.11:
SCPA 103(15) defines domicile as a “fixed, permanent and principal home to which a person wherever temporarily located intends to return.” Domicile and residence are not synonymous.11 The distinction between residence and domicile was defined by the Court of Appeals in In re Newcomb12 as follows:
As domicile and residence are usually in the same place, they are frequently used, even in our statutes, as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also intention to make it one’s domicile.13
It has been frequently stated that the most important element in determining the domicile of a decedent is that of intention. While domicile may exist without actual residence, it can never exist without intention.14 Even a long-continued absence from a domicile does not effect a change in it so long as an intention to return to it exists. However, the physical presence of a person in a certain place may be evidence tending to establish a domicile there, but it is not conclusive unless intention is also shown.15
11 In re Brosnan, N.Y.L.J., Sept. 16, 1994, at 29 (Sur. Ct. Kings County); In re Brown, 132 Misc. 2d 811, 505 N.Y.S.2d 334 (Sur. Ct. Kings County 1986).
12 In re Newcomb, 192 N.Y. 238, 250, 84 N.E. 950, 954 (1908).
13 The importance of Newcomb continues unabated; see, e.g., In re Urdang, 194 A.D.2d 615, 599 N.Y.S.2d 60 (2d Dep’t 1993); In re Brosnan, N.Y.L.J., Sept. 16, 1994, at 29 (Sur. Ct. Kings County).
14 In re Frick, 116 Misc. 488, 190 N.Y.S. 262 (Sur. Ct. New York County 1921).
15 In re Rotholz, 164 Misc. 914, 300 N.Y.S. 56 (Sur. Ct. Bronx County 1937).
For an example of how the words are used in popular language and the etymology of the words, see Merriam Webster Online Dictionary.
According to the United States Tax Code, 25 CFR Section 301.6362-6 a "domicile" is a person's permanent home.
(3) Domicile defined. For purposes of subparagraph (1)(ii) of this paragraph (b), and paragraph (d)(4) of this section, the term “domicile” shall mean an individual's fixed or permanent home. An individual acquires a domicile in a place by living there; even for a brief period of time, with no definite present intention of later removing therefrom. Residence without the requisite intention to remain indefinitely will not suffice to change domicile, nor will intention to change domicile effect such a change until accompanied by actual removal. A domicile, once acquired, is maintained until a new domicile is acquired. 26CFR Section 301.6362-6.