Estate Law Blog

New Jersey, like virtually every state, allows a spouse to take an “elective share” of their deceased spouse’s estate. The general notion, and the national model, is that you can’t cut your spouse completely out of your will.

In reality, though, New Jersey’s approach is very different from most states, and the right of a spousal share is far from a sure thing.

By statute, a spouse has a right to take an elective share against the estate, and an initial review of the statute makes the election calculation seem relatively straightforward: as a minimum inheritance, a surviving spouse in entitled to one-third of the “augmented” estate. N.J.S.A. 3B:8-1. The augmented estate means the gross estate, reduced by certain administration expenses, plus the value of property transferred by the decedent during the marriage under certain circumstances. The definition of the augmented estate is generally understood as primarily seeking to recover gifts made within 2 years of the date of death.

In application, the law providing for spousal election is so contorted that I’m inclined to say that the exceptions virtually swallow the rule. The most significant feature of New Jersey’s spousal election scheme is that, unlike similar laws in most other states, the New Jersey law is not designed to prevent disinheritance. Instead, it is designed to assure a modicum of continuing support if needed. The assets of the surviving spouse, whether vesting by virtue of the decedent’s death or independently acquired, are deducted from the elective share. If the disinherited spouse’s assets exceed one-third of the augmented estate, then the spouse is not entitled to an elective share. See, e.g., Aragon v. Estate of Snyder, 314 N.J. Super. 635 (Ch.Div. 1998); In re Estate of Cole, 200 N.J. Super. 396 (Ch.Div. 1984); In re Estate of Bilse, 329 N.J. Super. 158 (Ch.Div. 1999).

In short, it’s true that a surviving spouse is entitled to an elective share, but in effect, that share gets “paid” first from the surviving spouse’s own assets.