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

As mentioned in my earlier blog, there are three occasions identified in New Jersey law that define when a spouse is not entitled to a 1/3 share of his/her 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 which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death.”  If you and your spouse are living apart and separately, spouses that are living separately normally are taking care of themselves.  In a recent Appellate Division case, Matter of Estate of Hersh, 195 N.J. Super. 74 (App. Div. 1984), an estranged couple that was separated for 30 years precluded the surviving spouse from claiming an elective share.

The husband and wife were married in New York in 1940 and separated in 1950.  The husband obtained a divorce in Mexico, and the wife got a judgment of separation from bed and board in New York.  The New York Appellate Division ruled both the divorce and judgment invalid, as it would not recognize the Mexican divorce and held there was no abandonment that would justify the separation from bed and board.  The husband died in 1981 and left a will.  The wife filed for an elective share.  Even though the judgment of divorce was struck down by the New York courts, the claim was denied because the wife had been separated from her estranged husband for over 30 years, which the court described as quasi-divorced.  In New Jersey, a no-fault divorce can be filed after 18 months of separation with no reasonable prospect of reconciliation.  This was a 30 year separation.  The court also denied any claims for retroactive support because there was no pending claim in the court for child support.

This case highlights exactly what the Legislature was talking about when it stated circumstances that would give rise to divorce.  A 30 year separation is certainly grounds for a divorce, even if a judgment of divorce was struck down by the New York courts.  The couple even attempted to get divorce.  So this was an easy case to interpret the law in a way the Legislature intended it to be.

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.