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Estate planning in New Jersey is riddled with legal complexities and requires the attention of a skilled estate attorney. One of those legal complexities is the spouse’s elective share, or the minimum amount of the decedent’s estate the surviving spouse is entitled to. The purpose of the spouse’s elective share is to protect spouses from being disinherited and unable to meet their needs.
Rosenblum Law estate attorneys are intimately familiar with all of the legal complexities of estate planning, including claiming the spouse’s elective share in New Jersey. Contact us today for a free consultation, and keep reading for more information.
Understanding the Spouse’s Elective Share in New Jersey
Section 3B:8-1 through Section 3B:8-19 of the New Jersey Revised Statutes form the statutory basis for the elective share in New Jersey. Section 3B:8-1 states that the surviving spouse is to receive an elective share of one-third of the augmented estate of the deceased. To be eligible to receive the elective share, the spouse must not be divorced or separated from the deceased.
The spouse’s elective share is particularly relevant in cases of disinheritance or minimal inheritance left to the surviving spouse. Claiming the spouse’s elective share is a complicated matter best left to an experienced attorney.
How the Elective Share Affects Estate Planning
It is important to balance elective share rights with testamentary freedom, or the right to create a will and name beneficiaries of one’s choosing. Everyone has the right to create a will and leave their estate to whomever they wish, with the exception of the elective share. The elective share thus should influence estate planning decisions such as beneficiaries.
There are some planning considerations that can ensure fairness and compliance with elective share provisions. For example, property jointly owned with the spouse is considered when calculating the elective share and can offset some of the elective share in estate planning. It is important to have a complete understanding of assets and property so that the elective share goes to the spouse.
It is also important to avoid common mistakes in estate planning that could lead to disputes over the elective share. These include cutting the spouse out of the will, leaving them minimal inheritance or only the marital home.
How an Attorney Can Assist with Elective Share Claims
An estate planning attorney can educate clients about their rights and options in claiming the spouse’s elective share in New Jersey. This area of the law is complex, and it is important to have an attorney explain the process.
It starts with filing a complaint with the Superior Court. Section 3B:8-12 states that someone has six months after a representative is appointed to the estate to file a complaint. The complaint must be accompanied by documentation that shows the spouse’s elective share. It is best for this complaint to be drafted by an attorney.
An attorney can assist with mediation or litigation if disputes arise. Mediation is a form of dispute resolution in which parties sit down with a mediator and their attorneys to work out the details of distribution of the estate. Litigation includes representing someone in court, presenting evidence and testimony to back the claim of the spouse’s elective share.
Elective Share and Other Beneficiaries
The elective share can impact other beneficiaries listed in the will. For example, if the spouse is disinherited or doesn’t receive at least the elective share, it could lead to adjustments in distribution of assets. Contested estates may also occur, which can take longer to settle.
The best way to minimize family disputes and ensure smooth estate administration is to file for the elective share in the time frame required and engage in mediation to minimize and resolve disputes. It could be that a change in the way the estate is distributed may be necessary.
FAQs
The spouse’s elective share in New Jersey is one-third of the augmented estate. The augmented estate includes property transferred during the life of the decedent if it meets certain criteria.
The elective share can be waived by the spouse at any time. If there is a prenuptial or postnuptial agreement that releases all rights to property of the decadent, this is considered a waiver of the elective share.
To claim the elective share, a spouse must file a complaint with the Superior Court within 60 days of a representative being assigned to the estate. If this leads to disputes or a change in distribution, court hearings may be required.
The elective share can affect children and other beneficiaries in the will by changing the distribution of the estate.
A spouse cannot claim the elective share if the court deducts the surviving spouse’s independently acquired or inherited assets from the decedent or the surviving spouse’s assets exceed one-third of the augmented estate.
The elective share impacts how and to whom estate assets should be distributed.
Yes. If all rights to property are waived in a prenuptial or postnuptial agreement, this is considered a waiver of the spouse’s elective share.
No, a spouse can only claim the elective share if they were married and living together at the time of the decedent’s death.
Contact Rosenblum Law Today
Whether you are planning your estate or needing to claim the spouse’s elective share, it is important to understand New Jersey law. It is best to get the advice of an experienced attorney who can put the law into terms you can understand.
Rosenblum Law estate planning attorneys can help you plan your estate or claim the spouse’s elective share. Contact us today for a free consultation to learn more.
Last updated: Jan 13, 2025
