FREQUENTLY
ASKED QUESTIONS - NEW JERSEY EDITION
QUESTION
#71: What is my share of my spouse's estate if I elect to take against the will
of my deceased spouse?
In
general, a surviving spouse dissatisfied with his or her share under the will
of the deceased spouse may renounce the will and elect to take his or her
statutory share of the testatorís entire estate. The surviving spouse is
entitled to one-third of the estate provided that at the time of death, the
surviving spouse and decedent had not been living separate and apart in
different habitations. Generally, the surviving spouse must elect to take
his/her elective share by filing a complaint within six months after the
appointment of a personal representative of the decedent's estate.
Whether
to elect to take against a Will is a decision that cannot be made without
comprehensive information regarding the affairs of the spouses. This is not a
matter for self-help and referral to an attorney familiar with estate
administration is normally required.
3B:8-1
Elective share of surviving spouse of person dying domiciled in this State
What
is my share of my spouse's estate if I elect to take against the will of my
deceased spouse?
In
general, a surviving spouse dissatisfied with his or her share under the will
of the deceased spouse may renounce the will and elect to take his or her
statutory share of the testator's entire estate. The surviving spouse is
entitled to one-third of the estate provided that at the time of death, the
surviving spouse and decedent had not been living separate and apart in
different habitations. Generally, the surviving spouse must elect to take
his/her elective share by filing a complaint within six months after the
appointment of a personal representative of the decedent's estate.
Whether
to elect to take against a will is a decision that cannot be made without
comprehensive information regarding the affairs of the spouses. This is not a
matter for self-help and referral to an attorney familiar with estate
administration is normally required.
The
following is the revised New Jersey Law on Elective share of surviving spouse
NJSA
3B:8-1 Elective share of surviving spouse
3B:8-1
Elective share of surviving spouse or domestic partner of person dying
domiciled in this State; conditions.
If
a married person or person in a domestic partnership dies domiciled in this
State, on or after May 28, 1980, the surviving spouse or domestic partner has a
right of election to take an elective share of one-third of the augmented
estate under the limitations and conditions hereinafter stated, provided that
at the time of death the decedent and the surviving spouse or domestic partner
had not been living separate and apart in different habitations or had not
ceased to cohabit as man and wife, either as the result of judgment of divorce
from bed and board or under circumstances which would have given rise to a
cause of action for divorce or nullity of marriage to a decedent prior to his
death under the laws of this State.
Amended
2005, c.331, s.7.
3B:8-2.
Elective share of surviving spouse or domestic partner of person dying not
domiciled in this State.
If
a married person or person in a domestic partnership not domiciled in this
State dies, the right, if any, of the surviving spouse or domestic partner to
take an elective share in property in this State is governed by the law of the
decedent's domicile at death.
Amended
2005, c.331, s.8.
3B:8-3.
Meaning of "augmented estate."
The
"augmented estate" means the 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:
a.
Any transfer made after May 28, 1980, under which the decedent retained at the
time of his death the possession or enjoyment of, or right to income from, the
property;
b.
Any transfer made after May 28, 1980, to the extent that the decedent retained
at the time of his death a power, either alone or in conjunction with any other
person, to revoke or to consume, invade or dispose of the principal for his own
benefit;
c.
Any transfer made after May 28, 1980, whereby property is held at the time of
decedent's death by decedent and another with right of survivorship;
d.
Any transfer made, after May 28, 1980, if made within 2 years of death of the
decedent, to the extent that the aggregate transfers to any one donee in either
of the years exceed $3,000.00.
Amended
2005, c.331, s.9.
3B:8-4.
Valuing property transferred
Property transferred in the manner set forth in
N.J.S. 3B:8-3 is valued as of the decedent's death except that property given
irrevocably to a donee during the lifetime of the decedent is valued as of the
date the donee came into possession or enjoyment of the property if that occurs
first.
3B:8-5.
Transfers excluded.
Any
transfer of property shall be excluded from the augmented estate under N.J.S.
3B:8-3, if made with the written consent or joinder of the surviving spouse or
domestic partner. There shall also be excluded from the augmented estate any
life insurance, accident insurance, joint annuity or pension payable to a
person other than the surviving spouse or domestic partner.
Amended
2005, c.331, s.10.
3B:8-6.
Other property to be included in augmented estate.
There
shall also be included in the augmented estate:
a.
The value of property owned by the surviving spouse or domestic partner at the
time of, or as a result of, the decedent's death to the extent that the
property is derived from the decedent by means other than by testate or
intestate succession without a full consideration in money or money's worth; and
b.
The value of the property described in subsection a. hereof which has been
transferred by the surviving spouse or domestic partner at any time during
marriage or domestic partnership without a full consideration in money or
money's worth to any person other than the decedent which would have been
includable in the spouse's or domestic partner's augmented estate if the
surviving spouse or domestic partner had predeceased the decedent.
Income
earned by included property prior to the decedent's death is not treated as
property derived from the decedent.
Amended
2005, c.331, s.11.
3B:8-7.
Property derived from decedent.
For
the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but
is not limited to, any beneficial interest of the surviving spouse or domestic
partner in a trust created by the decedent during his lifetime, any property
appointed to the spouse or domestic partner by the decedent's exercise of a
general or special power of appointment also exercisable in favor of others than
the spouse or domestic partner, any proceeds of insurance, including accidental
death benefits on the life of the decedent attributable to premiums paid by
him, any lump sum immediately payable and the commuted value of the proceeds of
annuity contracts under which the decedent was the primary annuitant
attributable to premiums paid by him, the commuted value of amounts payable
after the decedent's death under any public or private pension, disability
compensation, death benefit or retirement plan, exclusive of the Federal Social
Security system, by reason of service performed or disabilities incurred by the
decedent, the value of the share of the surviving spouse or domestic partner
resulting from rights in community property acquired in any other state formerly
owned with the decedent and the value of any rights of dower and curtesy.
Premiums paid by the decedent's employer, his partner, a partnership of which
he was a member, or his creditors, are deemed to have been paid by the
decedent.
Amended
2005, c.331, s.12.
3B:8-8.
Valuation of property derived from decedent.
For
the purposes of valuing property derived from the decedent as provided in
N.J.S. 3B:8-6:
a.
Property owned by the spouse or domestic partner at the decedent's death is
valued as of the date of decedent's death; and
b.
Property transferred by the spouse or domestic partner is valued at the time
the transfer became irrevocable, or at the decedent's death, whichever occurs
first.
Amended
2005, c.331, s.13.
3B:8-9.
Presumption as to property owned or previously transferred by spouse or
domestic partner at decedent's death.
Property
owned by the surviving spouse or domestic partner as of the decedent's death,
or previously transferred by the surviving spouse or domestic partner, is
presumed to have been derived from the decedent except to the extent that any
party in interest establishes that it was derived from another source.
Amended
2005, c.331, s.14.
3B:8-10.
Waiving right to an elective share.
The
right of election of a surviving spouse or domestic partner and the rights of
the surviving spouse or domestic partner may be waived, wholly or partially,
before or after marriage before, on or after May 28, 1980, by a written
contract, agreement or waiver, signed by the party waiving after fair disclosure.
Unless it provides to the contrary, a waiver of "all rights" (or
equivalent language) in the property or estate of a present or prospective
spouse or domestic partner or a complete property settlement entered into after
or in anticipation of separation, divorce or termination of a domestic
partnership is a waiver of all rights to an elective share by each spouse or
domestic partner in the property of the other and a renunciation by each of all
benefits which would otherwise pass to him from the other by intestate
succession or by virtue of the provisions of any will executed before the
waiver or property settlement.
Amended
2005, c.331, s.15.
3B:8-11.
Who may exercise the right to take an elective share.
The
right of election to take an elective share by a surviving spouse or domestic
partner may be exercised only during his lifetime. In the case of a surviving
spouse or domestic partner for whom the court has appointed a guardian to
manage his estate, the right of election may be exercised only by order of the
court making the appointment after finding that the election is necessary to
provide adequate support of the surviving spouse or domestic partner during his
probable life expectancy.
Amended
2005, c.331, s.16.
3B:8-12.
Filing complaint for elective share; extension of time.
The
surviving spouse or domestic partner may elect to take his elective share in
the augmented estate by filing a complaint in the Superior Court within 6
months after the appointment of a personal representative of the decedent's
estate. The court may, before the time for election has expired and upon good
cause shown by the surviving spouse or domestic partner, extend the time for
election upon notice to persons interested in the estate and to distributees
and recipients of portions of the augmented estate whose interests will be
adversely affected by the taking of the elective share.
Amended
2005, c.331, s.17.
3B:8-13.
Notice of hearing.
The
surviving spouse or domestic partner shall give notice of the time and place
set for hearing to persons interested in the estate and to the distributees and
recipients of portions of the augmented estate whose interests will be
adversely affected by the taking of the elective share.
Amended
2005, c.331, s.18.
3B:8-14
Withdrawal of demand for an elective share.
The
surviving spouse or domestic partner may withdraw his demand for an elective
share at any time before entry of a final judgment by the court.
Amended
2005, c.331, s.19.
3B:8-15.
Fixing amount of elective share; payment of elective share
The court shall
determine the amount of the elective share and shall order its payment from the
assets of the augmented estate or by contribution as appears appropriate in the
manner as hereinafter set forth in this chapter. If it appears that a fund or
property included in the augmented estate has not come into the possession of
the personal representative, or has been distributed by the personal
representative, the court nevertheless shall fix the liability of any person
who has any interest in the fund or property or who has possession thereof,
whether as trustee or otherwise. The proceeding may be maintained against fewer
than all persons against whom relief could be sought, but no person is subject
to contribution in any greater amount than he would have been if relief had
been secured against all persons subject to contribution.
3B:8-16.
Enforcing judgment
The judgment of the court made pursuant to N.J.S. 3B:8-15
may be enforced as other judgments are enforced by law.
3B:8-17.
Value of surviving spouse's or domestic partner's interest in any life estate.
3B:8-17.
Value of surviving spouse's or domestic partner's interest in any life estate.
In
an action for an elective share, the electing spouse's or domestic partner's
total or proportional beneficial interest in any life estate in real or
personal property or in any trust shall be valued at one-half of the total
value of the property or trust or of the portion of the property or trust
subject to the life estate.
Amended
2005, c.331, s.20.
3B:8-18.
Satisfaction of elective share.
The
amount of the surviving spouse's or domestic partner's elective share shall be
satisfied by applying:
a.
The value of all property, estate or interest therein, owned by the surviving
spouse or domestic partner in his own right at the time of the decedent's death
from whatever source acquired, or succeeded to by the surviving spouse or
domestic partner as a result of decedent's death notwithstanding that the
property, estate or interest or part thereof, succeeded to by the surviving
spouse or domestic partner as the result of decedent's death has been renounced
by the surviving spouse or domestic partner;
b.
The value of the property described in subsection b. of N.J.S. 3B:8-6, and
c.
The remaining property of the augmented estate is so applied that liability for
the balance of the elective share of the surviving spouse or domestic partner
is equitably apportioned among the recipients of the augmented estate in
proportion to the value of their interests therein.
Amended
2005, c.331, s.21.
3B:8-19.
Persons subject to contribution.
Only
original transferees from, or appointees of, the decedent and their donees, to
the extent the donees have the property or its proceeds, are subject to the
contribution to make up the elective share of the surviving spouse or domestic
partner. A person liable to contribution may choose to give up the property
transferred to him or to pay its value as fixed in the manner provided in
N.J.S. 3B:8-4.
Amended
2005, c.331, s.22.
For
more information, go to http://njwillsprobatelaw.com/elective_share_of_spouse.html?id=371&a=
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