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Disinheriting your spouse may be more difficult than you think

| Aug 7, 2020 | Estate Planning |

A profound fear held by many spouses in New Jersey marriages where the other spouse owns a disproportionate share of the marital assets is that the wealthier spouse will leave a will in which the surviving and less well-off spouse virtually no assets. Fortunately, New Jersey law contains a guaranty for all spouses: they are entitled to choose between taking one-third of the deceased spouse’s estate or the amount left in the will.

This share is called the “elective share.” It was created by the New Jersey Legislature many years ago to prevent wealthy people (mostly men in those days) from failing to provide for their spouses after they die. The notice of intent to claim the elective share must be given by the electing spouse to the other spouse during the lifetime of the spouse entitled to make the election. If nothing further occurs, the surviving spouse will have the right to inspect the financial records of the decedent before deciding whether to exercise the elective share.

The law in New Jersey provides a method of waiving the right to the elective share. If, for whatever reason, a couple decides that the elective share will not serve their interests, they may waive the right to the elective share. The waiver must be in writing, signed by the party making the waiver after receiving “fair disclosure” from the other party. If the waiver contains the words “all rights”, the person signing the waiver is giving up the elective share and all other rights of intestate succession.

Anyone who believes that a bequest to their spouse may be ill-advised may wish to consult an experienced estate planning attorney for advice. A competent attorney can review any existing will, advise on its effect, and if necessary, draft the documents necessary to accomplish a waiver of the elective share.