What Is a Surviving Spouse Entitled To in New Jersey, New York, and Connecticut?

The short answer: in New Jersey, New York, and Connecticut alike, a surviving spouse cannot be cut out entirely. If the deceased spouse left no will, the survivor takes a large share of the estate under the intestacy statute. If the deceased spouse left a will that gives the survivor little or nothing, the survivor can “elect against the will” and take a statutory share instead. The size of that share and the way it is measured differ sharply by state. New Jersey gives one-third of the “augmented estate,” a figure that includes certain lifetime transfers and even the survivor’s own property. New York gives the greater of 50,000 dollars or one-third of the net estate, counting a long list of non-probate “testamentary substitutes.” Connecticut gives only a life estate in one-third of the property passing under the will. Each state also has a deadline measured in months, and missing it forfeits the right.

This article explains what a surviving spouse receives without a will, what the elective share is and how it is computed in each state, who is disqualified, and how the right can be waived or planned around.

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What Does a Surviving Spouse Inherit If There Is No Will?

Each state’s intestacy statute gives the spouse first claim, with the size of the share depending on whether the deceased left children or parents and whether the children are also the survivor’s.

New Jersey. Under N.J.S.A. 3B:5-3, the surviving spouse or domestic partner takes the entire intestate estate if the deceased left no descendant or parent, or if all of the deceased’s descendants are also the survivor’s and the survivor has no other descendants. If the deceased left no descendants but a parent survives, the spouse takes the first 25 percent of the estate, not less than 50,000 dollars nor more than 200,000 dollars, plus three-quarters of the balance. If the deceased left descendants who are not the survivor’s, or the survivor has descendants who are not the deceased’s, the spouse takes the same first 25 percent within the same limits, plus one-half of the balance.

New York. Under EPTL 4-1.1, a spouse takes the whole estate if the deceased left no issue, and 50,000 dollars plus one-half of the residue if the deceased left issue, with the balance to the issue. New York does not distinguish between children of the marriage and children of a prior relationship.

Connecticut. Under General Statutes section 45a-437, a spouse takes the whole estate if there are no issue or parents; the first 100,000 dollars plus three-quarters of the balance if there are parents but no issue; the first 100,000 dollars plus one-half of the balance if all issue are also the survivor’s; and one-half of the estate if any issue are not the survivor’s.

Blended families are where these formulas bite. A New Jersey or Connecticut spouse with stepchildren from the deceased’s first marriage takes roughly half rather than all, and a plan that relies on intestacy leaves the rest to the stepchildren outright. Our article on estate planning for blended families addresses that problem directly.

What Is the Elective Share?

The elective share is the minimum a surviving spouse can claim when the deceased left a will, or used trusts and beneficiary designations, to give the survivor less than the law thinks fair. The survivor “elects against the will,” meaning gives up whatever the will provides and takes the statutory amount instead. It is a right the survivor must exercise; nothing happens automatically.

How Does New Jersey’s Elective Share Work?

Under N.J.S.A. 3B:8-1, a surviving spouse or domestic partner of a person who dies domiciled in New Jersey “has a right of election to take an elective share of one-third of the augmented estate.” The one-third sounds simple. The augmented estate is not.

Under N.J.S.A. 3B:8-3, the augmented estate begins with the probate estate less funeral and administration expenses and enforceable claims. It then adds the value of property the deceased transferred during the marriage to anyone other than the spouse without full consideration, if the transfer falls into one of four categories: transfers in which the deceased kept possession, enjoyment, or income for life; transfers in which the deceased kept a power to revoke or to consume the principal; property held with another person with right of survivorship at death; and gifts made within two years of death to the extent they exceed 3,000 dollars to any one recipient in a year. A revocable trust, a joint account with a child, a house deeded to a child with a retained life estate, and large gifts in the last two years all come back into the calculation.

Then comes the feature that makes New Jersey unusual. Under N.J.S.A. 3B:8-6, the augmented estate also includes the value of property the surviving spouse owns at the deceased’s death to the extent it was derived from the deceased other than by inheritance, such as joint accounts, life insurance, and prior gifts, together with such property the survivor gave away during the marriage. And under N.J.S.A. 3B:8-18, the survivor’s elective share is satisfied first by applying “the value of all property, estate or interest therein, owned by the surviving spouse or domestic partner in his own right at the time of the decedent’s death from whatever source acquired.” A surviving spouse who already owns, in her own name, more than one-third of the combined figure receives nothing from the election. The New Jersey elective share is, in effect, a floor of one-third of the couple’s combined wealth, not a claim to one-third of the deceased’s.

The election is made under N.J.S.A. 3B:8-12 “by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent’s estate.” The court may extend the time for good cause if asked before it expires. The remaining share, after the survivor’s own property is counted, is apportioned among the other recipients of the augmented estate in proportion to what they received, which means beneficiaries under the will and recipients of the lifetime transfers can all be required to contribute.

How Does New York’s Elective Share Work?

Under EPTL 5-1.1-A, a surviving spouse may elect to take “the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate.” Debts, administration expenses, and funeral expenses reduce the net estate; estate taxes do not.

New York reaches non-probate assets through a list of “testamentary substitutes” that are added to the net estate for the calculation and are subject to the election. They include gifts made in contemplation of death; gifts within one year of death beyond the federal annual exclusion; Totten trust bank accounts; joint bank accounts; property held jointly or as tenants by the entirety; revocable trusts and other transfers in which the deceased kept income or control; retirement and pension plan benefits, with half of certain plans counted; property subject to a general power of appointment; and transfer-on-death securities. A New York spouse cannot be disinherited by moving everything into a revocable trust or naming other beneficiaries on accounts.

The survivor elects by written notice filed with the Surrogate’s Court “within six months from the date of issuance of letters testamentary or of administration,” but “in no event later than two years after the date of decedent’s death.” The Surrogate may extend the six months by up to another six and may relieve a default for good cause within limits. Unlike New Jersey, New York does not count the survivor’s own property against the share, so a wealthy surviving spouse receives the full one-third.

New York also gives the surviving spouse, or minor children if there is no spouse, certain exempt property off the top of the estate under EPTL 5-3.1, before creditors and before the will operates: household furniture, appliances, and similar items up to 20,000 dollars; family books, pictures, and media up to 2,500 dollars; farm animals and equipment up to 20,000 dollars; one motor vehicle up to 25,000 dollars; and money or other personal property up to 25,000 dollars.

How Does Connecticut’s Statutory Share Work?

Connecticut is the least generous of the three. Under General Statutes section 45a-436, a surviving spouse may elect to take a “statutory share,” defined as “a life estate of one-third in value of all the property passing under the will, real and personal,” after payment of debts and charges. Two limits stand out. The share is a life estate, not outright ownership: the survivor receives the use and income of one-third for life, and the property then passes as the will directs. And it reaches only property passing under the will. A Connecticut spouse who moved assets into a revocable trust or named others as beneficiaries has, for this purpose, moved them out of reach, which is the opposite of the New York and New Jersey rules.

The election is made by written notice filed with the Probate Court “not later than one hundred fifty days after the mailing of the decree admitting the will to probate,” and a spouse who does not file in time “shall be barred.” If the will leaves the spouse something, the gift is treated as being in lieu of the statutory share unless the will says otherwise, but the spouse may still elect the share instead. A support allowance from the estate under section 45a-320, which the Probate Court may award for the family’s support during administration, postpones the statutory share until the allowance period ends.

Who Is Not Entitled to the Elective Share?

Each state disqualifies a survivor in defined circumstances, and each honors a valid waiver.

Separation and misconduct. New Jersey’s N.J.S.A. 3B:8-1 conditions the right on the spouses not “living separate and apart in different habitations” and not having “ceased to cohabit as man and wife,” whether under a judgment of divorce from bed and board or “under circumstances which would have given rise to a cause of action for divorce or nullity.” A long separation without a divorce can forfeit the right. New York’s EPTL 5-1.2 disqualifies a spouse where a final divorce, annulment, or separation decree was in effect at death, where the marriage was void, where the survivor obtained a foreign divorce New York does not recognize, where the survivor abandoned the deceased and the abandonment continued until death, or where the survivor had a duty to support the deceased and failed to do so. Connecticut’s section 45a-436 bars the share where the survivor “without sufficient cause, abandoned the other and continued such abandonment” to the time of death.

Waiver. All three states enforce a written waiver, most commonly in a prenuptial or postnuptial agreement. New Jersey’s N.J.S.A. 3B:8-10 allows the right to be waived “wholly or partially, before or after marriage” by a signed writing “after fair disclosure,” and treats a waiver of “all rights” in the other’s property, or a complete property settlement after or in anticipation of separation or divorce, as a waiver of the elective share and of intestate rights. Connecticut’s statute excludes any case in which “by written contract made before or after marriage, either party has received from the other what was intended as a provision in lieu of the statutory share.”

How Do Couples Plan Around the Elective Share?

The right exists to protect spouses, and most couples never need to think about it. It matters in second marriages, where each spouse wants their own children to inherit; where one spouse owns a business or property that should stay in the family; and where a spouse with diminished capacity is vulnerable to a new marriage. The tools are:

• A prenuptial or postnuptial agreement that waives the elective share, with full financial disclosure and independent counsel for each side. This is the only reliable method in New Jersey and New York, where trusts and beneficiary designations are pulled back into the calculation.
• A trust for the surviving spouse that provides income for life with the remainder to the deceased spouse’s children. In New Jersey, the value of what the spouse receives from the deceased counts toward satisfying the share. In Connecticut, a life estate in one-third is all the statute requires, and a trust can be designed to meet it.
• Lifetime gifts made early. New Jersey adds back gifts only within two years of death and New York within one year, so a long-term gifting program to children reduces the base.
• Retirement account planning with awareness that federal law separately requires a spouse’s consent to name anyone else as beneficiary of most employer plans, a rule the elective share statutes do not override.

For the surviving spouse, the deadlines are the whole game. Six months from the appointment of the executor in New Jersey and New York, and 150 days from admission of the will in Connecticut, pass quickly in the months after a death. A spouse who has been left out should see a lawyer before the estate is opened, not after.

Plan Well. Live Better.

The elective share protects spouses who were left out and surprises families who did not know it existed. At Milvidskiy Law Group, we help couples build plans that provide for a spouse and protect children from prior marriages, and we represent surviving spouses and executors when an election is made. Learn more about our estate planning services.

This article is for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Elective share and intestacy rules depend on domicile, the form in which assets are held, and the terms of any agreement between the spouses. The statutes and figures described were verified in September 2026 against the New Jersey Statutes, the New York Estates, Powers and Trusts Law, and the Connecticut General Statutes and should be confirmed before relying on them.