New Jersey law affords surviving spouses important rights and benefits. In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.
What if a Spouse Dies Without a Will?
- INTESTATE. When an individual dies without a will, intestate succession law will govern. Under New Jersey law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration.
- INTESTATE SHARE. If a spouse dies without a Will, the surviving spouse receives an intestate share.
- SHARE OF SURVIVING SPOUSE. No Children or Children of both Surviving Spouse and Decedent. If the only survivor is a surviving spouse or if the children or descendants who survive the decedent are the lineal descendants of the surviving spouse and the decedent, then the surviving spouse receives the entire intestate estate of the decedent. See N.J. Stat. Ann. § 3B:5-3(a)(1)-(2).
- SHARE OF SURVIVING SPOUSE. NO DESCENDANT OF DECEDENT BUT PARENT OF THE DECEDENT. If there is no surviving issue of the decedent but a parent of the decedent survives the decedent, the surviving spouse inherits the first one-fourth of the intestate estate (but not less than $50,000 or more than $200,000), plus three-fourths of the balance. See N.J. Stat. Ann. § 3B:5-3(b).
- SHARE OF SURVIVING SPOUSE. Descendants Not Of Both Surviving Spouse and Decedent. If all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent; or, if one or more of the decedent’s surviving descendants is not a descendant of the surviving spouse, the surviving spouse inherits the first one-fourth of the intestate estate (but not less than $50,000 or more than $200,000), plus one-half of the balance. See N.J. Stat. Ann. § 3B:5-3(c)(1)-(2).
What if I Am Left Out of the Will?
- OMITTED SPOUSE. If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called a omitted spouse. Under New Jersey law, a pretermitted spouse is entitled to take a share of the estate as if the decedent died intestate, unless the will clearly provides to the contrary. See N.J. Stat. Ann. § 3B:5-15(a)(1)-(3).
Elective Share or Election Against a Will
- ELECTIVE SHARE. Under New Jersey law, a surviving spouse has a right to share in a decedent’s estate. The surviving spouse has a right of election to take an elective share of one-third of the augmented estate. See N.J. Stat. Ann. § 3B:8-1.
- Augmented Estate – Defined. Under N.J. Stat. Ann. § 3B:8-3, the “augmented estate” means:
[T]he estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money’s worth for the transfer, if the transfer is of any of the following types:
- The decedent retained a right of possession or income from the property;
- The decedent retained the power to consume the transferred property or revoke, consume, invade or dispose of the principal for his own benefit;
- Any transfer held at the time of the decedent’s death with another who held a right of survivorship;
- Any transfer as a gift within the two years preceding decedent’s death in excess of $3,000.
- SATISFACTION: The value of the elective share is satisfied based on a defined priority of assets and property. Following this statutorily-proscribed method, the surviving spouse’s share shall be satisfied by applying the value of all property, estate or interest therein, owned by the surviving spouse in his or her own right at the time of the decedent’s death from whatever source acquired, or succeeded to by the surviving spouse as a result of decedent’s death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse as the result of decedent’s death has been renounced by the surviving spouse. See N.J. Stat. Ann. § 3B:8-18.
- DEADLINE FOR FILING FOR THE ELECTIVE SHARE. The surviving spouse may elect to take his or her elective share in the augmented by filing a complaint in the Superior Court within six months after the appointment of a personal representative of the decedent’s estate. See N.J. Stat. Ann. § 3B:8-12.
Exemptions from Transfer Inheritance Tax
The State of New Jersey imposes both an Estate Tax as well as a Transfer Inheritance Tax on the estates of resident decedents. There are several tax implications surviving spouses need to be aware of. Namely, qualified employment annuities paid to a surviving spouse are exempt from the transfer inheritance tax. It is advised that the surviving spouse consult with an experienced attorney in order to understand the tax structure on inheritances with regard to their rights.
Time for Probate of Will; Preliminary Filing
- No will shall be admitted to probate until after 10 days from the death of the testator; but the complaint and other papers in any action for the probate of a will may be filed, and the depositions of the witnesses thereto and the qualification of the executor or administrator with the will annexed may be taken at any time subsequent to the death of the testator and before the will is admitted to probate.
What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?
- Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation. We recommend a consultation with a New Jersey attorney to better understand the rights of a surviving spouse in this jurisdiction.