Under New Jersey Law, a surviving spouse or domestic partner may be entitled to an elective share of their spouse’s or partner’s Estate, pursuant to N.J.S.A. 3B:8-1, in lieu of a distribution under their Will. Pursuant to the Elective Share statute, a spouse or domestic partner may take their share of their spouse’s or partner’s Estate either under their Will or pursuant to the elective share statute, unless there is clear evidence of a waiver by the surviving spouse or partner to an elective share of the Estate. Otherwise, the entitlement to an elective share may trump any distribution to the spouse or partner set forth in the Will and may provide for a greater distribution than this person might have received under the Will.

In general, the distribution of an elective, pursuant to the elective share statute, is relatively straightforward. The surviving spouse would be entitled to a share of the decedent’s Estate, which equals one third of the augmented Estate of the decedent. The augmented Estate refers to the Estate reduced by funeral and administration expenses and enforceable claims against the Estate. The value of the augmented Estate may be reduced or increased in other fashions; however, for the purposes of this blog that is a general description of what constitutes the augmented estate.

Pursuant to the Elective Share statute, however, a spouse or partner may not be entitled to an elective share of the Estate if that spouse or partner was not actively residing with the decedent, and was more or less separated at the time the decedent passed away.

In general, if the parties had been living separate and apart and not as man and wife or domestic partners, either as a result of a judgment of divorce or under circumstances which would give rise to a cause of action for divorce, or the annulment of marriage, the surviving spouse or domestic partner would not be entitled to an elective share. It is possible that this issue may arise if there was a brief separation, and thereafter, an elective share is sought by a surviving spouse.

Furthermore, it can involve situations where the parties obtained a divorce, yet continue living as husband and wife or domestic partners after the divorce. Under these circumstances it is wise to consult with an attorney if you are either seeking an elective share or contesting one.