If the decedent has children from a prior union, the spouse will take the first 25%, but not less than $50,000 nor more than $200,000 plus one half of any balance. Decedent's children (from this marriage or any prior union) share the other half equally.
If there are no children, but the decedent is survived by parent(s), the spouse will take the first 25% of the estate, but not less than $50,000 nor more than $200,000, plus three fourth of any balance. The parents will inherit the other one fourth.
3. How are inheritance rights impacted in a divorce?
Divorce clients should be advised to revise their will and estate plan after divorce proceedings. A clause in a will that leaves a bequest to the ex-spouse may be invalid because of the divorce. However, this doesn't mean that the will is void.
If a spouse dies, then the surviving spouse may elect to take one-third of the estate. This is called an elective share. Basically, a spouse can't be disinherited. The surviving spouse has a right to an elective share of the deceased's estate. The elective share is 1/3 of the decedent's estate. The only way that a surviving spouse can be completely disinherited is if the parties execute a prenuptial agreement. In a prenuptial agreement both spouses can agree to waive any claims to an elective share of each other's respective estates.
It is important to emphasize that N.J.S.A. 3B:8-1 provides that the right to elect the statutory share is cut off if at the time of the spouse's death if the couple were living in different habitations, or had ceased to cohabitate as man and wife. Basically, a spouse has no right to an elective share of one-third the estate if the couple is "living separate and apart," or under circumstances which would give rise to an action for a divorce.
Continue Reading