The Spouse’s Safety Net in New Jersey Inheritance

The Elective Share Ensures a Fair Inheritance for a Surviving Spouse or Partner, Regardless of the Deceased’s Allocation of Assets in a Will or Trust.

An elective share prevents one spouse or domestic partner from disinheriting the other. So long as both spouses were married and living together at the time of death, a surviving spouse has the right to one-third of the deceased’s “augmented” estate unless the surviving spouse waives the right to an elective share. In essence, one spouse cannot transfer property or disinherit the other by terms of a will or trust to deprive the other of their minimal one-third share of the net estate with adjustments for any wrongly transferred property belonging to both.

Elective Share in New Jersey as a Way to Protect Spousal Rights

The primary purpose of the statute is to protect the assets that rightfully belong to spouses and domestic partners in a decedent’s estate so the estate can provide them with continued support. Under New Jersey law, a spouse or domestic partner is entitled to whatever the decedent left them in a will or their “elective share” of their spouse’s or partner’s estate.

So long as the decedent (deceased individual) died while residing in New Jersey, the decedent and spouse or partner were living together, married, and not divorced or separated under circumstances that would entitle one spouse to a divorce, the surviving spouse or domestic partner can elect their share against the will (N.J.S.A. 3B:8-1). So, divorced or separated spouses do not get to elect from their estranged spouses, but the determination of living as married may need to be clarified when divorced spouses live together. Otherwise, clearly, cohabitating spouses or domestic partners can claim against the estate.

In other words, a spiteful spouse may prepare a will, leaving all their belongings and property to children, friends, and relatives but nothing to their spouse or domestic partner. Once the disinheriting spouse dies, the surviving spouse can file an action in the decedent’s probate and elect their one-third share. Even if the spiteful spouse left something for the surviving spouse, the elective share may be larger, and the remaining spouse is entitled to their one-third share of the “augmented estate.”

New Jersey’s Augmented Estate Explained

N.J.S.A. 3B:8-3 defines “augmented estate” as the total value of the estate assets minus expenses for funeral, estate administration, and enforceable debts. However, it also includes the added value of property the decedent wrongfully transferred to others while married or in a domestic partnership or transferred for a lesser value than the property was worth. Property includes post-May 28, 1980, transfers of income property, property in which the decedent retained an interest, property held jointly with another who has survivorship rights, or property worth $3,000.00 or more to anyone within two years of the decedent’s death.

Property includes everything the decedent owned in their name, including bank accounts, retirement benefits, annuities, trusts, life insurance, and property held jointly. Though these assets may have beneficiary designations, they are still part of the augment estate subject to an elective share. Thus, a spouse can recover their legal share, even in property that automatically goes to children named as beneficiaries on life insurance policies or other assets, regardless of how it gets to the beneficiary, by trust, will, or otherwise.

Understanding Elective Share Waivers in New Jersey

In sum, assets a decedent gave away that rightfully belonged to the marital or domestic partnership estate while the decedent lived may be brought back into the probate estate to calculate the elective share. So long as the spouse or domestic partner did not waive their election right, they get their one-third. A waiver after May 28, 1980, must be in writing and signed by the spouse or domestic partner giving up their elective share in a separate document or via a divorce decree, settlement agreement, prenuptial agreement, or another legal document specifically relinquishing their right in the decedent’s property.

How Elective Share Recovery May Affect Beneficiaries

Without a waiver, a surviving spouse or domestic partner may agree with the personal representative or trustee of a trust to get their elective share. Absent cooperation and an agreement, the spouse or partner can bring their elective share claim to the superior court handling the decedent’s probate within six months after the court appoints a personal representative for the estate. Once the court determines the share, the surviving spouse or domestic partner takes their share against the will, and beneficiaries get less in proportion to the surviving spouse’s take.

Additionally, those who received property undervalued by the decedent during their lifetime lose the benefit of their gift or bargain. The recipients who still hold the property or proceeds the decedent transferred to them must return or contribute the value of what is owed to augment the estate to what it should be had the decedent not transferred property without compensating the spouse or partner.

The Intricacies of Elective Share Calculations and Claims

Though the process and calculation seem straightforward, evaluating an elective share claim can be pretty complex. Moreover, when calculating one-third of the augmented estate, the court must deduct the surviving spouse’s independently acquired or inherited assets from the decedent from the one-third. Therefore, the surviving spouse or partner may not get anything from the estate. With so many considerations and complex calculations, a personal representative responsible for paying the elective share or the spouse claiming their elective share needs legal help.

Consult with One of our Experienced Estate Planning Lawyers for Help Streamlining Your Elective Share Claim in Ocean County, NJ

Getting a probate attorney’s assistance for this issue is helpful and necessary when you must investigate the decedent’s estate to evaluate an elective share. Such an investigation can require intricate real estate and financial knowledge that is beyond your expertise or confusing, at the very least. At The Bronzino Law Firm, our estate law and probate attorneys deal with financial matters and legal actions by spouses and other beneficiaries in probate on a regular basis. As such, we can help you streamline the process and take care of the legal paperwork and investigation to ensure an estate claim is accurate and valid.

Refrain from shortchanging yourself or making mistakes in probate proceedings. Contact an estate lawyer at our Brick or Sea Girt office when you face an elective share claim as a spouse or personal representative. A mistake can be costly, affect your support when needed most, and affect beneficiaries. As a personal representative, you have a fiduciary role for the benefit of the estate and its beneficiaries. Hiring our team of probate attorneys ensures all beneficiaries receive what is legally theirs. Contact us for a free consultation regarding your will-related questions and concerns at (732) 812-3102 or get in touch online for a free consultation to discuss your case today. We can assist you anywhere in Lavallette, Lacey, Manchester, Sea Bright, Beach Haven, Red Bank, and communities in and around Monmouth and Ocean County.