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Can I Cut My Spouse out of My Will?

Aug 31, 2018 | Probate, Will

Can I Cut My Spouse out of My Will in New Jersey?

Or are you wondering can my husband cut me out of his will? Can my wife cut me out of her will? The answer is yes you, he or she can write a will to cut out your spouse, but it may not be effective in the eyes of the law. As with most legal questions this is an interaction between the law, a person’s wishes and what the spouse who was cut out chooses to do.
You can write a will that cut’s your spouse out of the will, but that does not mean that your spouse will not try to take part of your estate. Just like you can sue for any reason you want, it doesn’t mean you are going to win in court. If you cut your spouse out of your will, they can take what is called an “Elective Share” of your “Augmented Estate.” Or, they may just take your will on its face and not go after what they are allowed for by law.

New Jersey Elective Share

Your will can disinherit your spouse, but New Jersey Law is written so that a surviving spouse has the right to a minimum “Elective Share”. The Elective Share is equal to one-third of the “augmented estate.”  Any probable attorney your spouse would hire would tell your spouse about the share he or she would take. 

What is an Augmented Estate in New Jersey?

According to the New Jersey code “The ‘augmented estate’ means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not…..”  

Are your eyes rolling back in your head at this time?  Trying to read the New Jersey code can but most people to sleep.

The augmented estate is basically the estate to the spouse who passed away including all assets in the Will, plus the things transferred during his or her lifetime in which he or she retained some type of control, or which were made within two years before he or she died. Think of giving away their car to someone before they died. The value of the care would be added to the augmented estate. 
Joint accounts with someone others than the spouse are included in the augmented estate. But, life insurance, joint annuities or pensions are not included except under federal rules that grant the surviving spouse survivor benefits in pensions and other retirement plans. Federal law trumps state law so it would override New Jersey law.
However, your surviving spouse looking to claim an elective share needs to meet 3 tests:(1) Your and your spouse must be living together when you pass away;(2) Your spouse must actually file a complaint in court within six months of the appointment of your executor; and(3) The law is needs-based, which means that if your spouse already owns a property, either acquired independently from you or inherited from you that is equal to or more than the elective share amount, the elective share is not acceptable and your spouse are entitled to nothing beyond what is provided under your Will.

What does a New Jersey Elective look like in Use?

Pretend Mike a stoke broker has $10,000,00 in assets that will pass under his Will.  The beneficiaries under his Will are only his children.  His spouse  Betty’s elective share amount is one-third of that amount, $3,333,333.  However, Betty was a real estate broker and has $5,000,000 worth of property and cash independent of Mike. The elective share would be considered satisfied and Betty would not be entitled to anything under Mike’s Will.  Similarly, if Mike designated Betty as the beneficiary of a $5,000,000 life insurance policy, the elective share would be considered satisfied since the value of what Betty received outside of the Will exceeded her elective share amount.

What if I am a the Spouse of Someone Who Died and His Will was Made before He We were Married?

Are you in this situation? Did your spouse make a will before you married and made no provision for you as a future spouse, and then your spouse passed away?  You as the surviving spouse are entitled to an “Intestate Share” of your spouse’s estate.  Intestate is a fancy way of saying someone died without a will. New Jersey law handles how a person’s estate is distributed when they do not have a will. This law can be complicated as it takes into account for children, and children from prior or post relationships and if the spouse has parents that are still alive. So the intestate share could possibly include the entire estate no matter what the will says. If you find your self in this situation call us at 973-200-1111 to go over your options.

Lazaro Cardenas, Esq. is a New Jersey State Licensed attorney, focusing on Probate and Real Estate who has helped many people with settle the estates of their loved ones.

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