Elective Share of Spouse

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.

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