The Elective Share and Other Rights of a Surviving Spouse

Most people know what when a married person dies without a will, the surviving spouse is entitled to a significant share of the deceased’s estate. Depending on the family structure and other natural heirs, the surviving spouse may inherit the full estate through intestate succession, or may share the estate with the decedent's children or parents. While the division of assets is subject to sometimes-complex calculation, the protection of the surviving spouse's interest is primary.

Posted on October 31, 2017

What many New Jersey residents don’t realize is that a surviving spouse is typically entitled to a 1/3 share in the estate, even if the deceased left the whole estate—or more than 2/3 of the estate—to others. A domestic partner may also be entitled to an elective share. The process by which the surviving spouse or domestic partner can claim this share is known as “electing against the will.”

Claiming an Elective Share in New Jersey

If the surviving spouse decides to claim the elective share, he or she must file a complaint in the appropriate Superior Court within six months of appointment of a personal representative. However, the 1/3 allocation is not as straightforward as it may sound.

The fractions set forth in the statute apply to the “augmented estate,” which is determined by deducting certain expenses set forth in the statute and adding certain assets. In addition, property of the surviving spouse is factored into the calculation. Before determining whether or not pursuit of the elective share is warranted, the surviving spouse will have to inventory and value assets of the decedent and of the surviving spouse and apply a statutory formula.

One of the most complex aspects of the calculation involves property transferred by the deceased spouse without fair compensation during the marriage. Thus, the value of the augmented estate may include property that the deceased no longer owned at the time of his or her death. For example, if the deceased spouse decided, six months before his death, to transfer a vacation house to his college roommate in return for $500, the value of that property would be included in the augmented estate.

Eligibility for the Elective Share

It is important to note that the surviving spouse is typically eligible for the elective share even if the decedent intentionally disinherited him or her. However, there are some circumstances under which a surviving spouse may not be entitled to the elective share. These include:

• When the spouses were separated or divorced at the time of death
• When the surviving spouse waived his or her interest in the estate, such as in a prenuptial agreement

Both the circumstances that would legally be interpreted to mean that the spouses were separated and the validity of a waiver of interest in the estate can be nuanced, and these questions are best assessed by a seasoned professional.

The Impact of the Elective Share on Other Parties

When a surviving spouse elects against the will, the interests of named beneficiaries are obviously impacted. If the spouse or domestic partner uses the elective share to claim a large piece of the estate than anticipated under the will, that reallocation will reduce assets available for distribution to the beneficiaries chosen by the decedent.

When the augmented estate includes assets that were transferred for less than full value during the deceased spouse’s lifetime, transferees may also be affected. To the extent that the original recipients retain possession of the property—or the proceeds of the property—transferred for less than full value, they may be liable for contribution.

Elective Share Litigation is Complicated

Whether you are a surviving spouse or domestic partner asserting your right to an elective share, a personal representative faced with a claim for an elective share, a named beneficiary whose inheritance is at stake, or a recipient of property who may be liable for contribution to the estate, the issues before you are complicated. An experienced estate lawyer can guide you through the process, helping to determine your best course of action, retaining the right experts to assess valuation and otherwise protecting your interests.