Monday, February 9, 2015

Premarital Wills

NJSA 3B:5-15 provides that if a person had a Will, and later married but did not update the Will, then the surviving spouse a share of the Estate equal to the “intestate share” as though the Testator died intestate. The Legislature assumes that the person forgot to update his or her Will and would want the spouse to get an inheritance.

Note that the above does not apply if the Will was made in contemplation of the marriage; if the Will states that it is to be effective regardless of any subsequent marriage; and/or if the Testator intended the spouse to be provided for via transfers outside the Will.

This statute also applies to domestic partnerships and civil unions.

This only affects Wills executed on or after September 1, 1978.

A “premarital Will” is different than a Will that excludes the spouse deliberately. If a person is married and then creates a Will that excludes the spouse, then the spouse is entitled to an “Elective Share” of the “Augmented Estate.” This is typically less than the intestate share, but is designed to protect the spouse in spite of the decedent trying to disinherit the surviving spouse. You can read more about a spouse’s Elective Share here.

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