- If a spouse dies and he or she does not leave their estate to a surviving spouse, the surviving spouse may, under NJ law, take legal action to claim a one-third share of the estate of their deceased spouse.
- This right is called an elective share.
- Basically, a spouse can’t be disinherited.
- The only way that a surviving spouse can be completely disinherited is through a mutual agreement while married or by a prenuptial agreement where both spouses agree to waive any claims to an elective share of each other’s respective estates.
New Jersey’s Elective Share Law Explained
An elective share estate includes not only property in a decedent’s name alone, but also most assets with beneficiary designations such as bank accounts, securities, IRA’s, interests in jointly-held property, annuities, interests in trusts, the cash value of life insurance, and even property that you might have been transferred to a child within one year preceding death. In other words, a spouse cannot easily ignore their spouse’s survivorship rights to his or her estate. Many clients ask me how the surviving spouse will be able to claim his or her share if the assets are left in trust for a child. The answer is that the surviving spouse can file a probate proceeding and force the trustee or child to return the assets to satisfy the elective share obligation.
To discuss your NJ estate administration and probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Will Contest and Probate Litigation Attorney