Safeguarding a Portion of the Estate for Surviving Spouses Through NJ Elective Share
In New Jersey, cutting your spouse out of your will or leaving them with nothing because you don’t have a will is impossible under certain conditions. State law gives the surviving spouse an elective share, giving them the right to claim part of the estate despite the deceased’s wishes. This legal safeguard gives financial protection for the surviving spouse, preventing them from becoming destitute. It upholds the idea that marital rights inherently create financial obligations between spouses. It ensures fairness and security for the surviving spouse. With these legal safeguards in place, it is important to have a legal advocate who can successfully preserve your interests while navigating the complexities of New Jersey’s elective share.
Our experienced estate law attorneys at Chamlin, Uliano, and Walsh assist clients with elective share issues and inheritance matters throughout Monmouth County and Ocean County, including in Neptune, Asbury Park, Freehold, Matawan, and Little Silver. If you need guidance on elective share rights or estate planning in New Jersey, contact us today at 732-440-3950 for a consultation.
A Spouse’s Right to One-Third of the Estate: NJ Elective Share in Action
The elective share is the right of a spouse to acquire one-third of the estate upon their spouse’s passing. If the couple were still married and under the same roof at the time of death, the surviving spouse has a statutory right to this benefit. According to N.J.S.A. 3B:8-1, individuals in a legal marriage or domestic partnership who are residents of New Jersey are entitled to claim one-third of the augmented estate through the elective share. This entitlement is conditional. If the couple were living in separate residences or were legally separated, the elective share does not apply. It also does not apply if they lived together but under a divorce of bed and board or other circumstances that would nullify the marital union.
It is common for spouses to first confront the concept of elective share when one of the spouses dies and they hadn’t considered estate planning. Their assets may total hundreds of thousands of dollars, even millions. Because there is no will, the surviving spouse will be entitled to one-third of the estate.
How Pre and Post-Marriage Assets Affect the Elective Share in New Jersey
An augmented estate is a combination of the probate estate’s value, gifts the deceased spouse gives to third parties, joint bank accounts, pensions, and joint property. This concept prevents the decedent from holding assets in trust. It also prevents the surviving spouse from taking more than their share if their spouse had given them substantial assets before passing. The transfer of property conducted before the decedent’s passing is excluded, as are the assets held in a special needs trust. Any assets the decedent holds before marriage that are determined non-marital are also excluded. Accident insurance, annuities, or pensions payable to someone other than the surviving spouse are not calculated as part of the elective share.
When a Surviving Spouse Should Consider the Elective Share in NJ Estate Matters
There are scenarios where taking the elective share is more beneficial than following the provisions in the will and vice versa. The elective share is a statutory right that cannot be taken away. It grants the surviving spouse one-third of the augmented estate, which includes the probate estate and other assets such as life insurance and jointly-owned property. The decedent’s intentions determine the amount the surviving spouse receives under a will. They could receive a substantial portion of the estate or nothing. The surviving spouse has no legal recourse if they accept the provisions in the will and do not choose the elective share. Tension between the surviving spouse and other beneficiaries, especially children from a past marriage, can be troubling. These beneficiaries usually feel they are entitled to more, and the surviving spouse takes away what they should receive. To avoid conflict, the surviving spouse may keep the peace by following the will but lose the financial safety net they would otherwise receive.
When a spouse disinherits the other or excludes them from their will, leaving them high and dry, the elective share is a financial lifesaver, even when the estate is on the small side. A drop is better than a drought. The elective share is usually chosen if the deceased spouse doles out less than the statute specifies. The elective share is a better option when other beneficiaries receive disproportionate estate shares. Despite the will’s validity, it does not provide enough for the surviving spouse. The will may assign control of the family business or marital property to someone other than their spouse. Blended families and second marriages can be especially complicated when there is a will and even more so when there is not. It may be the case that the surviving spouse contributed everything they had to buy and maintain their joint assets.
But they may be left holding the bag when the bulk of the estate and their hard-earned money is divided between the decedent’s children from a prior marriage. The elective share provides a safety net for the surviving spouse, ensuring that they are not left out in favor of previous wives or children.
The Key Role of Elective Share in Estate Planning and Marital Agreements
Prenuptial and postnuptial agreements can influence the elective share. In either case, the spouses may agree to include it in their agreement or to waive it and provide for each other in specific ways in the will. In estate planning, discussing elective shares can encourage a couple to begin planning if one of them dies. It allows the couple to learn about their inheritance rights and whether requesting an elective share would benefit them. They may set up their estate to provide one-third of their assets (or more) to each other in the will instead of using an elective share. Open communication regarding how the estate will be divided and ensuring it is fairly distributed will likely be more successful when discussions begin early.
Elective Share Disputes Resulting in NJ Estate Litigation
A common point of contention among the beneficiaries is speculation regarding the eligibility of the surviving spouse. Estate litigation may be the only resolution to this debate. Another issue is a dispute about which assets should be included in the elective share calculation. Jointly-held property, retirement accounts, and other non-probate assets can raise questions.
A surviving spouse may challenge the will’s validity by alleging the decedent was unduly influenced or lacked the cognitive capacity to understand what was occurring. They may claim the decedent was pressured into making provisions disregarding their spouse’s needs or rights. If the will is successfully contested, the assets could be redistributed. This could prolong the settlement of the estate and create more tension between beneficiaries, but it may be the only viable path toward a fair and just resolution.
Speak with our Accomplished Estate Law Attorneys for Help Finding Elective Share Solutions in Monmouth County, NJ
After someone has been chosen to represent the decedent’s estate, the surviving spouse has six months to submit their claim for their elective share. Whether you are the surviving spouse or a personal representative of the decedent, probate law is cumbersome and complex in New Jersey. Our estate law attorneys at Chamlin, Uliano, and Walsh have the skills necessary to investigate financial and probate matters in Red Bank, Long Branch, Toms River, Lakewood, Edison, Medford, and any other town across Southern New Jersey. Mistakes cost time and money. They can also ruin relationships between the beneficiaries. We have the answers and provide the advocacy you need to settle the estate. If you have questions regarding wills, elective shares, or other probate matters, call our Monmouth County office today at 732-440-3950 for a consultation or complete our online form to learn more.