How Do You Handle The Estate Administration When the Surviving Spouse is Not A U.S. Citizen

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Administration Attorney

Recently a husband died testate (meaning he had signed a Last Will) leaving his non-citizen spouse and minor child born in NJ as beneficiaries. His Will left everything to his surviving spouse. His estate was small the main asset being a house (owned only be decedent) worth approx. $225k. The goal was to disclaim wife’s interest in the house so it would go into trust for his minor child. The question asked had to do with the tax consequences, NJ and Federal, if any. A question about disclaimer tax planning also came up.

My first reaction was to ask the citizenship status of the husband. If he was a green card holder or US Citizen, then his estate can still avail itself of the federal and state exemptions and no death or inheritance tax is due because the estate is under the threshold for estate taxes. Also no QDOT will need to be established (a QDOT is a trust for a non-citizen surviving spouse required to allow for an estate marital deduction under the IRS code).

I question why the surviving spouse would want to disclaim the home. Is it for the purposes of minimizing estate taxes or for any other reason?

Assuming that a disclaimer is necessary, then you would go about filing a formal written disclaimer according to the NJ disclaimer statute provisions with the County Clerk and possibly the Surrogate’s office located in the county where decedent resided.

The NJ Disclaimer provision (unlike the Federal Statute) does not have a 9 month deadline for filing.

To discuss your NJ Probate Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.