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

Under a Last Will, the executor or executrix is legally required to follow the terms of the will to distribute Estate assets to the named beneficiaries.  Funeral expenses and the decedent’s debts are paid first even before the property is distributed to those named in the Will.  But what if the will disinherits the current spouse and gives all of the Estate to the children directly or in trust, or it goes to the testator’s favorite charity, or others?  Under N.J.S.A. §3B:8-1, an omitted surviving spouse has the right to file a Will Contest seeking a one-third elective share from the Estate.  The reason for this law has to do with the support of the spouse.  If one spouse is the breadwinner of the family, while the other spouse is not, there will likely be a highly adverse change in the lifestyle of the spouse who is currently homebound should the breadwinner suddenly die and not provide for the other spouses’ support in the will.  Should one die without a will, our intestacy laws provide that if the other spouse is living, he or she is entitled to at least a portion of the estate.  The same is the case for a will that totally disinherits a spouse.  The rights of a spouse to inherit a portion of the Estate is an enforceable right given to a surviving spouse.

Like many provisions found in New Jersey estate law, the rights of spouses’ can be expressly changed by agreement between them, subject to any finding of undue influence.  A right to an elective share can be expressly waived by a spouse per N.J.S.A. §3B:8-10, provided the spouse has been told the ramifications of doing this.  But there needs to be a signed agreement saying that the spouse is waiving “all rights” to the estate that he or she may have.  It cannot just say in the testator’s will that the spouse has given up his or her right to an elective share.

There are also three situations provided for in N.J.S.A. §3B:8-1 that prohibit when a surviving spouse cannot make an elective share claim.  Each revolves around the reality of spouses who are no longer living together or acting as if they are married.  The first instance is when spouses are living separate and apart in different dwellings.  If the spouses have been living apart for a while, but have not divorced yet, the surviving spouse cannot just assert rights to a share of the estate.  Since the goal of the elective share is to provide for the other spouse, spouses that are living separately are taking care of themselves.  Therefore, the law does not permit an elective share claim.

The next situation is if there is a judgment of divorce entered between the couple.  This one is self-explanatory.  If the couple is no longer married, an elective share is impossible.  The third situation is a fluid one.  It provides that an elective share is inappropriate under “circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his or her death.”  Not much case law exists here to describe this situation.  Living separately is certainly a cause of action for divorce.  In Carr v. Carr, 229 N.J. Super. 370, 372 (App. Div. 1988), aff’d and remanded, 120 N.J. 336 (1990), the Appellate Division upheld the judgment denying a widowed spouse a share in the estate because the couple were going through divorce proceedings.  The couple was going to divorce anyway, so the luck the widow had that the spouse died before a divorce judgment was entered does not give her the right to assert a share in the estate.

Should none of these situations apply in your case, you may be entitled to a 1/3 elective share in your spouse’s estate.

To discuss your NJ Estate 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.