Monday, September 22, 2014

Elective Share of Surviving Spouse


The New Jersey statute pertaining to a surviving spouse’s elective share, R. 3B:8-1, reads as follows:

“If a married person or person in a domestic partnership dies domiciled in this State, on or after May 28, 1980, the surviving spouse or domestic partner has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.”

Per the statute quoted above, a surviving spouse has a right to one-third of the deceased spouse’s Estate. If the decedent’s Will does not provide for the surviving spouse, or provides relatively little, the surviving spouse has a right to elect against the Will in order to obtain his or her “fair share.”


It is also important to bear in mind that under R. 3B:8-12, the surviving spouse must elect against the decedent’s Will within six (6) months of the appointment of a personal representative of the Estate. It is possible to get an extension from the Court, but there must be good cause for the extension to be granted.

If it is clear that the Will does not adequately provide for the surviving spouse, it is advisable to address the issue quickly, before the statute of limitations runs, in order to avoid protracted litigation and associated fees.