Elective Share of Surviving Spouse

If a spouse dies and their Will does not make bequests to the surviving spouse, there is a method to challenge or "elect against the Will". The spouse can fight to receive one third of the decedents estate. This provides some protection so a spouse is not left penniless.

The Law Offices of Kenneth Vercammen & Associates handles Probate, contesting wills, contesting estates, mismanagement and theft, Probate disputes, inheritance problems, undue influence, contentious probates, and other relevant issues. We encourage you to consult an attorney if you are faced with any of these situations.

Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

You must call to schedule an in-office consultation as we cannot provide legal advice over the phone.

The following New Jersey statute sets forth the Elective share of surviving spouse. 3B:8-1. Elective share of surviving spouse of person dying domiciled in this State; conditions If a married person dies domiciled in this State, the surviving spouse 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 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.

3B:8-2. Elective share of surviving spouse of person dying not domiciled in this State If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedents domicile at death.

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, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent did not receive adequate and full consideration in money or moneys 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 decedents 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.

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 decedents 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. 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.

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 at the time of, or as a result of, the decedents 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 moneys worth; and

b. The value of the property described in subsection a. hereof which has been transferred by the surviving spouse at any time during marriage without a full consideration in money or moneys worth to any person other than the decedent which would have been includable in the spouses augmented estate if the surviving spouse had predeceased the decedent.

Income earned by included property prior to the decedents death is not treated as property derived from the decedent.

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 in a trust created by the decedent during his lifetime, any property appointed to the spouse by the decedents exercise of a general or special power of appointment also exercisable in favor of others than the spouse, 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 decedents 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 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 decedents employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.

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 at the decedents death is valued as of the date of decedents death; and

b. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedents death, whichever occurs first.

3B:8-9. Presumption as to property owned or previously transferred by spouse at decedents death Property owned by the surviving spouse as of the decedents death, or previously transferred by the surviving spouse, 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.

3B:8-10. Waiving right to an elective share The right of election of a surviving spouse and the rights of the surviving spouse 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 a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to an elective share by each spouse 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.

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 may be exercised only during his lifetime. In the case of a surviving spouse 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 during his probable life expectancy.

3B:8-12. Filing complaint for elective share; extension of time The surviving spouse 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 decedents estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse, 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.

3B:8-13. Notice of hearing The surviving spouse 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.

3B:8-14. Withdrawal of demand for an elective share The surviving spouse may withdraw his demand for an elective share at any time before entry of a final judgment by the court.

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 spouses interest in any life estate In an action for an elective share, the electing spouses 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.

3B:8-18. Satisfaction of elective share The amount of the surviving spouses elective share shall be satisfied by applying:

a. The value of all property, estate or interest therein, owned by the surviving spouse in his own right at the time of the decedents death from whatever source acquired, or succeeded to by the surviving spouse as a result of decedents death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse as the result of decedents death has been renounced by the surviving spouse;

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 is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.

For Probate and Estate Administration matters, schedule a confidential consultation with Kenneth Vercammen, 732-572-0500

KENNETH VERCAMMEN, ESQ.

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Elective share of surviving spouse