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Can I Be Cut Out Of My Spouse’s Will?

The answer to that question is the typical wholly unsatisfying response to many great legal questions- it depends.

New Jersey law provides that surviving spouses have the right to a minimum “elective share” equal to one-third of the “augmented estate.”  The augmented estate is essentially the decedent spouse’s probate estate, which includes all assets passing under the decedent’s Will, plus certain assets transferred by the decedent during lifetime in which he or she retained some type of control, or which were made within two years of death.  The augmented estate also includes joint accounts with someone other than the surviving spouse, but does not include life insurance, joint annuities or pensions (although there are federal rules which grant a surviving spouse survivor benefits in pensions and certain retirement plans which would override New Jersey law).

Here’s the catch if you are a surviving spouse looking to claim an elective share:  (1) you must be living together as spouses at the time your spouse passes away; (2) you must actually file a complaint in court within six months of the appointment of the decedent spouse’s executor; and (3) the law is needs-based, which means that if you have your own property, either acquired independently or inherited from your spouse, that is equal to or in excess of the elective share amount, the elective share is deemed satisfied and you are entitled to nothing beyond what is provided under the Will.

For example, assume George has $1,000,000 in assets that pass under his Will.  The beneficiaries under the Will are his children.  Martha’s elective share amount is one-third of that amount, $333,333.  However, Martha accumulated $500,000 of her own assets so the elective share would be deemed satisfied and Martha would not be entitled to anything under the Will.  Similarly, if George designated Martha as the beneficiary of a $500,000 life insurance policy, the elective share would be deemed satisfied since the value of what Martha received outside of the Will exceeded her elective share amount.

The lesser known cousin of the elective share is the “omitted spouse.”  If, before being married, someone executes a Will that makes no provision for a future spouse, and that person then dies, the surviving spouse is, with some exceptions, entitled to an “intestate share” of the deceased spouse’s estate.  When someone dies without a Will they are said to have died “intestate,” and New Jersey law dictates the manner in which that person’s estate is distributed.  The amount received by a spouse under intestacy laws varies depending upon whether the decedent had children and whether his or her parents are surviving, but it can include the entire estate.

For example, assume George and Martha get married but never get around to updating their Wills.  They have no children, and George’s parents are deceased.  George passes away and his Will designates his siblings as beneficiaries.  Martha is an omitted spouse, and as such, is entitled to the entire estate notwithstanding the provisions of the Will.

If George’s parents are surviving, Martha will receive the first 25% of the estate, but not less than $50,000 nor more than $200,000, plus 75% of the balance (the parents receive the remaining 25%).

If George designates his daughter from a prior marriage as the beneficiary under his Will rather than his siblings, Martha will be entitled to the first 25% of the estate but not less than $50,000 nor more than $200,000, plus one-half of the balance (George’s daughter will receive the rest).

Note that it is common in premarital agreements for spouses to waive elective share and omitted spouse rights, in which case neither right applies.

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