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The elective share is effectively a way to prevent one’s spouse from disinheriting the other spouse in their estate plan. While the size of the share varies from state to state, the essence of the elective share rules is to make sure the surviving spouse receives certain portion of the deceased spouse’s estate.  

In New Jersey, the elective share is one-third of the estate. This means that, so long as both spouses were still married, still cohabitating, and were not separated and apart, the surviving spouse will be entitled to at least one-third of the deceased spouse’s estate. 

In this article, we explain more about what the New Jersey elective share laws provide, how they can be beneficial, and how they affect an estate plan. If you have questions about elective share laws when it comes to your estate, call a Rosenblum attorney today.

New Jersey Elective Share Laws

In New Jersey, upon the spouse’s death, both spouses must still be married, cohabitating, and not separated. If a married couple is still married and living together when one of them dies, and they did not specifically give the surviving spouse anything in their will, the survivor could have a claim to inherit a statute-mandated one-third share of the estate.

Let’s say that Jim and Jane have been married for thirty years. They remained married and together the entire time. However, Jim decides not to name Jane in his will, which would deprive her of money and assets she counted on if he dies first.  To prevent this from happening, many states have enacted elective shares laws to ensure a surviving spouse can inherit at least some portion of the estate.

How Can an Elective Share be Beneficial?

An elective share in New Jersey is most commonly beneficial in two instances:

• A spouse disinherits the other spouse or omits the other spouse from their will, leaving the surviving spouse with nothing; or 
• The deceased spouse, in their estate plan, leaves the surviving spouse with less than New Jersey law says the surviving spouse is entitled to. 

In the first case, if someone disinherits their spouse and omits them from their will, then the other spouse can claim an elective share. In the second case, the surviving spouse can claim an elective share and receive more than they were left in the deceased’s will. 

An elective share can be paid using most estate assets. When calculating the value of an estate for elective share purposes, even assets with designated beneficiaries (i.e. bank accounts, life insurance, and retirement plan) can be included. The higher the value of the estate, the larger amount the elective share will pay out to the surviving spouse.

How Does This Impact an Estate Plan?

The elective share can impact an estate plan in two primary ways:

• by causing the spouses to plan ahead for when one of them dies; and
• by properly educating a married couple about their rights to inherit from each other’s estates.

A married couple can take the elective share into account when creating their estate plans. Whether they both decide to create a last will and testament or a living trust, the elective share could still apply. 

Thus, it may be wise to bestow at least one-third of one’s estate on one’s spouse because they are entitled to at least that amount anyway, according to New Jersey law. While it may be in the best interest of both spouses to leave behind a greater share, it is worthwhile to understand the minimum requirement.

How Can Rosenblum Law Help?

At Rosenblum Law, our team has decades of experience and expertise in estate planning. During our consultations, we will work with you closely to ensure that your estate plan is specially crafted to your particular circumstances. We can help you create a comprehensive and thorough estate plan that properly accounts for all of the people closest to you. 

While the elective share can be a very useful tool, it is one that ideally you would not want to use. The best way to avoid this is to create your optimal estate plan that designates exactly which of your assets will be inherited by whom. 

To begin your estate planning process, reach out to Rosenblum Law and schedule your free estate planning consultation. Just give us a call at 888-235-9021, and we will be happy to assist you