Do You Have a Right to Disinherit Your Spouse?

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Written By Berry Mathew

The marital pledge is “until death does us part.” While the promise is made at a happy point in one’s life, it does not necessarily last.

When you’re married and try to create a Last Will or Trust that excludes or fails to leave significant money to your spouse, can they contest your ultimate desires? The law in New Jersey allows your omitted or disinherited spouse to contest your Will or Trust and collect up to one-third of your wealth.

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A surviving spouse’s “elective share rights” are governed by New Jersey statutes and case law (N.J.S.A. 3B: 8-1). The legislation states that if a married individual dies domiciled in this state, the surviving spouse has the option of electing to claim their “elective share,” which is roughly one-third of the “augmented estate.”   

Considering the decedent and surviving spouse appeared to have separated before the decedent’s death in the absence of a divorce judgment.

This means that regardless of what their will says or doesn’t say, a surviving spouse can claim around one-third (1/3) of their deceased spouse’s inheritance. Even if the surviving spouse consented to a gift to another person, the surviving spouse could not make the present a part of an elective share.

It’s worth noting that if a person dies without making a will, the surviving spouse can inherit the full estate or half of it if the deceased person had children.

Under N.J.S.A. 3B:8-15, a court must “determine the amount of the elective share.” Suppose the surviving spouse and the estate cannot agree. In that case, a court must decide the enhanced estate and the amount of elective distribution so that an appropriate payment or distribution can be made. Value does not always imply the value at the time of death.

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Of course, there are a few exceptions to the elective share legislation that can preclude a spouse from suing their deceased spouse.

  • An enhanced estate may be excluded if the surviving spouse approves it in writing. NJSA 3B:8-5. 
  • Before marriage, a premarital agreement between the surviving spouses and the deceased spouse could also waive their rights under the New Jersey Elective Share Law.

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