Written By:Scott Glatstian
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An essential part of dealing with losing a loved one is knowing personal rights regarding inheritance. Estate planning is complex when there is no will or trust. In the absence of a proper estate plan, a spouse can be left wondering what will happen to them when their partner passes away.
In general, a spouse can receive their inheritance through a will, trust, intestacy laws, or the elective share. Each of these methods of inheritance differs from the others and can result in a different distribution of assets, depending on the details of your specific situation. Below is a brief summary of each option:
- A will is a legal document that ensures that your assets are distributed according to your wishes.
- A trust is a fiduciary arrangement that allows another party, or trustee, to hold your assets in a new legal entity on behalf of your appointed beneficiaries.
- Intestacy laws take effect when there is no will, and these laws differ from state to state.
- In New Jersey, the state will determine who gets what when someone dies without a will.
- In New Jersey, the spouse has a right to claim an “elective share,” which is the right to one-third of the deceased spouse’s probate estate.
This article will explore these options in further detail. However, if you are unsure of your rights after a spouse’s passing, it’s best to speak with an experienced estate attorney who will be able to review your situation and determine exactly what your inheritance should be.
What Is a Will?
A will is a legal document that outlines how an individual would like their property to be distributed after death.
The person who creates the will is called the testator. The testator will name an executor in their will. This person will be responsible for gathering the assets in the estate and distributing them to the chosen heirs. Even though distributing assets is the biggest part of the will, it also includes other important decisions regarding one’s affairs and their passing.
It is wise to consider everything a person wants to include in their will. Crafting a will can include guardianship for children left behind, as well as naming other important fiduciary roles, such as trustees for assets held in trust for certain beneficiaries. The last will can also specify certain religious preferences and one’s wishes regarding charitable donations, amongst other things.
A last will is a great way to cover all the concerns one has about their estate after death. It also protects the inheritance of loved ones, so it’s wise to seek professional advice from an experienced estate planning attorney to help you create this complex document.
What Is a Trust?
A trust is a separate legal entity that holds property for the benefit of another person. When a person decides to make a trust, they can choose a person they would want to manage the trust according to the terms they have created for the entity. That individual would be called a trustee.
A will and trust in New Jersey estate planning guide an estate executor and specify how assets are to be distributed after death. The most important distinction between a will and a trust is that while wills are created during an individual’s life and have an effect after death, trusts are managed and assets distributed in life and death.
People can choose one or both of the above options to give their belongings to their heirs. Consulting a lawyer to help tailor these options to your needs is the best way to create an estate plan that most accurately reflects your wishes while preserving as much of your estate as possible for your heirs.
The assets of a person who fails to create an estate plan before passing away will be distributed according to the intestate laws of the state where they resided. This can often lead to chaotic situations where the distribution of property is very different from what the deceased person would have wished for had they created a proper estate plan.
In New Jersey, spousal rights to an inheritance are strongly considered when distributing property through intestacy. However, exactly what is inherited by the surviving spouse will be determined by which other relatives of the deceased are still alive at the time of their passing.
Let’s explore some scenarios:
- Leaving behind a spouse and parents: When no children are involved, the spouse will be entitled to the first 25% percent of the intestate property, but not less than $50,000 or more than $200,000. The surviving spouse will also inherit 75% of the balance of the estate. The remaining estate will be given to the parents.
- Leaving behind a spouse and children that you have together: In this case, the spouse will inherit everything, and the children you both have together will receive nothing.
- Leaving behind spouse and children from a different relationship: The spouse will inherit 25% of the intestate property (Nothing less than $50,000 or more than $200,000). They will also get ½ of the balance. The children of the deceased person will inherit everything else.
- Leaving behind your spouse, children, and stepchildren: In this case, your spouse will inherit 25% of your intestate property (nothing less than $50,000 or more than $200,000). They will also get ½ of the balance. However, only your descendants will inherit the remaining assets.
- Leaving behind children but no spouse: In this case, your kids will inherit the whole estate.
- Leaving behind siblings and no one else: The siblings will inherit everything.
For people to inherit under New Jersey intestacy laws, a person will have a survivorship period. This means that a person has to outlive the deceased loved one by 120 hours, or will be considered to have predeceased them for estate distribution purposes.
How Intestate Laws Affect Non-traditional Families?
It’s important to note that modern families are comprised differently. A same-sex legal marriage is entitled to the same treatment as a heterosexual couple in the intestate succession process. However, if a person is not legally married to their partner, they will not be included in the intestate succession process. It will not matter if they are same-sex or heterosexual.
Along with biological children, other types of children are considered in the process. Adopted children have rights equal to those of biological children. If an individual is a foster child or a stepchild, they would have to be adopted by the person who passes to have equal treatment in the intestate process.
New Jersey is one of the few states with an inheritance tax, meaning some of the beneficiaries may have to pay taxes. This is something that should be considered when speaking with an estate attorney.
An elective share makes it hard for spouses to be removed from inheriting property from their current spouse. The law in New Jersey gives surviving spouses the right to a minimum equivalent to one-third of the “augmented estate” of the deceased loved one. Augmented estate means gross estate, which certain administration fees will reduce. This elective share can be claimed even if the surviving spouse was given less than one-third of the estate in the partner’s will, or even if they were specifically disinherited in the will.
The only scenario that would warrant a surviving spouse being disinherited is a mutual agreement between both spouses in which they waive their rights to elective shares. If a spouse wants to claim this elective share, they must be living together as a married couple at the time of death. If married but separated or have divorced at the time of death, it can disqualify a person from receiving an elective share.
Why Hire an Attorney?
Creating a last will or trust in New Jersey can sometimes be a complicated process, and always requires careful consideration by the person making the will. There are many ways to create a last will, but only working with a qualified attorney will ensure that the will covers everything, and make sure you don’t have to worry about intestacy laws or other complications in the distribution of your estate.
At Rosenblum Law, our experienced attorneys will work with you step-by-step to draft a last will or trust that will prepare you and your family for the future, whatever it may be. Our wills can be created on an affordable flat-fee basis, and require just a few hours of your time to complete. Call us now to get the process underway with a free consultation.
How to Cite Rosenblum Law’s Article
Scott Glatstian (Dec 8, 2022). What Does a Surviving Spouse Inherit in New Jersey?. Rosenblum Law Firm, https://rosenblumlaw.com/estate-planning/nj/can-spouse-leave-me-nothing/
Scott Glatstian "What Does a Surviving Spouse Inherit in New Jersey?". Rosenblum Law Firm, Dec 8, 2022. https://rosenblumlaw.com/estate-planning/nj/can-spouse-leave-me-nothing/