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

As mentioned in an earlier blog, there are three occasions identified under New Jersey law that define when a spouse is not entitled to a 1/3 share of their deceased spouse’s estate.  The first situation is the easiest: if there is a judgment of divorce entered between the couple, no elective share can be permitted.  The other two situations are a lot more fluid and require interpretation by the Court.  The first is when the spouses are living separate and apart in different dwellings.  The second is when “circumstances give rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death.”  If you and your spouse live separately, spouses that are living separately normally are taking care of themselves.  Since the goal of the elective share is to provide for the other spouse, the law says electing a share in the estate of a now deceased spouse doesn’t make sense.  But how long must spouses live separately to forfeit the elective share claim?  In the case of McKay v. Estate of McKay, 205 N.J. Super. 609 (Law Div. 1984), the court tackles this issue.

The husband and wife were living together in an apartment in Camden.  In 1980, the husband moved out of the marital apartment and resided with his son from another marriage in Atlantic County.  He moved around to different apartments in Atlantic and Cape May Counties, but ultimately ended up living with the son.  The husband intended to separate from his wife and divorce her, as evidenced by the statements he made to his friends and relatives.  He also made visits to the former marital apartment for the sole purpose of retrieving his belongings, and never resumed marital relations with his wife.  The husband died 10 months after moving out from the apartment living with his son.  The will was probated in Camden because the husband was never domiciled in one place in Atlantic County, and the issue before the court was whether the wife could claim an elective share despite the estrangement.

The trial court reviewed the legislative history of the elective share law and determined that the clause “circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death” modifies the spouses living separate and apart clause.  Therefore, the court held that the separation between husband and wife must have been sufficient to give rise to a divorce action.  In New Jersey, a no-fault divorce is valid if the couple is living separate and apart for 18 months.  Because the husband died ten months after leaving the residence, he would not have been eligible for a no-fault divorce.  There was also no proof that the wife abandoned him or abused him or the husband was otherwise eligible for a fault-based divorce.  Therefore, the wife was awarded an elective share in the property.

The issue before the court was how long a separation is necessary to determine that the wife was not entitled to an elective share.  In order for it to give a specific standard, the court held that the separation would have been sufficient under the law to give rise to a divorce.  While I understand that separations for a couple of months just to disinherit a spouse is not what the Legislature intended when it wrote the statute, the standard to forfeit an elective share should generally be evaluated upon the surviving spouse being able to financially support himself or herself without the presence of the other spouse.  It’s why the statute was enacted.  If the court wants to use the divorce standard to define a valid separation needed to disinherit a spouse, thereby drawing a line in the sand, I believe that if a separation occurs that is less than the standard needed for a no-fault divorce (18 months), the court should also do a hardship analysis to determine if the surviving spouse can support themselves without the presence of the other spouse.  That type of analysis would truly be in line with the ultimate intention of the Legislature when this statute was passed.

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