New Jersey: Cutting Off the Elective Share

What if you do not have a will, you only have a few weeks left to live, and you do not want your spouse to inherit your estate?

In New Jersey, a surviving spouse has a right of election to take an elective share of one-third of the augmented estate under certain limitations and conditions spouse.

You should live separately from your spouse and you may want to consider filing a Complaint for Divorce despite the fact that you may not live past Settlement or Trial.

Filing the complaint for divorce and acquiring New Jersey jurisdiction cuts off a spouse’s right to an elective share.

However, filing the divorce does not cut off the spouse’s right to equitable distribution resulting from the divorce. Equitable distribution is the distribution of assets in a fair and just manner.

In New Jersey, if a married person dies on or after May 28, 1980, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate under certain limitations and conditions. However, a surviving spouse is not entitled to an elective-share when, at the time of death, the parties are separated or when the decedent and surviving spouse have lived apart for circumstances that would give rise to a cause of action for divorce.

Where there is no will, a Judge will look at the deceased’s actions to determine intent. Certainly, the filing of a Complaint for Divorce illustrates a spouse’s intent.